1 See the books and periodicals on space uses listed in Hogan, ‘’ A Guide to the Study of Space Law,” P-1290, at 10-18 (Rand Corporation, March 1, 1958; to be published in St. Louis Univ. L.J., Spring, 1958); Odishaw, “ The Satellite Program for the International Geophysical Year,” 35 Dept. of State Bulletin 280 (1956); President's Science Advisory Committee, “Introduction to Outer Space” (hereinafter cited as “Killian Report“) (March 26, 1958); Berkner, “Man's Space Satellites,” 14 Bulletin Atomic Scientists 106 (No. 3, March, 1958). A popular symposium treatment is given in 41 Air Force: The Magazine of American Airpower, No.3 (March, 1958). See also the statement of Dr. Joseph Kaplan, Chairman, U.S. Committee for the International Geophysical Year, National Academy of Sciences, H.Rep. Comm. on Appropriations, Subcomm. on Independent Offices, Report on International Geophysical Year 20-26 (1957); statement of Dr. Richard W. Porter, Chairman, USNC-IGY Technical Panel on the Earth Satellite Program, ibid. 68-73; A.N. Nesmeianov, President of USSR Academy of Sciences, “The Problem of Creating an Artificial Earth Satellite,” Pravda, June 1, 1957, p.2.

2 For the fullest account so far given of the results of experiments conducted on the two Soviet satellites launched in 1957, see “Soviet Artificial Satellites of the Earth,” Pravda, April 27, 1958, p.4, giving a preliminary report, largely without numerical measurements, on measurement of orbits, atmospheric density and temperature, composition of the ionosphere, cosmic radiation, and biological effects on the dog carried in the second satellite. See also N.Y.Times, May 2, 1958.

3 Besides the sources cited in note 1, see Edson, ‘ ‘ Astronautics and the Future,'’ 14 Bulletin Atomic Scientists 102 (No.3, March, 1958); Recommendations of the Technical Panel on the Earth Satellite Program of the U.S. National Committee for the International Geophysical Year, excerpted in N.Y.Times, March 20, 1958. But cf. Dr.James Van Allen, Chairman of the Working Group on Internal Instrumentation of the USNG-IGY Technical Panel on the Earth Satellite Program, National Academy of Sciences, testifying before a subcommittee of the House of Eepresentatives in May, 1957: “ I might say I do not subscribe to some 99 percent of what is written about this subject—exploration of space—as having any validity.” H.Rep.Comm. on Appropriations, Subcomm. on Independent Offices, Report on International Geophysical Year 91 (1957).

4 Petrov, “Artificial Satellites of the Earth and the World Telecenter,” Zvezda, No. 4, pp. 160, 164 (June, 1957). According to Petrov, the notion of using aircraft as relay stations for television was proposed by P.V.Shmakovyi in 1936.

5 The U.S. Air Force reported in January, 1958, that it hoped to launch a military reconnaissance satellite with a recoverable capsule by the Spring of 1959: testimony of Major General Bernard A. Schriever, Commander of Air Force Ballistic Missile Division, before the Sen. Preparedness subcommittee, reported in N.Y.Times, Jan. 15, 1958. According to subsequent testimony by the same officer before the House Select Committee on Astronautics and Space Exploration, the project for the development of a reconnaissance satellite had been given top national priority, N.Y.Times, April 25, 1958. Unidentified Air Force officials were reported as estimating “ that a reconnaissance satellite carrying a telescope forty inches in diameter could detect objects on earth less than two feet in size from an altitude of 500 miles.” Ibid. The President told the American Society of Newspaper Editors on April 17, 1958, that a reconnaissanee satellite, if successful, “would transmit military information of value to all the armed forces.” N.Y.Times, April 18, 1958. See also Petrov, loc. cit. note 4 above, p.163; Edson, “Astronautics and the Future,” 14 Bulletin Atomic Scientists 102 at 104-5 (No. 3, March, 1958). Some technical limitations are pointed out in Parsons, “Open Sky Plan in the Atomic Age,” Missiles and Rockets 78, 80 (June, 1957); Haviland, “ O n Applications of the Satellite Vehicle,” 26 Jet Propulsion 360, 361-362 (No. 5, Pt. 1, May, 1956); “TJSAF Pushes Pied Piper Space Vehicle,” Aviation Week, Oct. 14, 1957, p. 26.

6 Counters on the two Explorer satellites launched early in 1958 have detected radiation of unexpected intensity near the apogees of their orbits. N.Y.Times, May 2, 1958.

7 See the papers reprinted in ‘ ‘ Man in Space: A Tool and Program for the Study of Social Change,” 72 Annals N.Y.Acad. Sci. 165-214 (1958); Haley, “Space Law and Metalaw: A Synoptic View,'’ paper presented at the 7th Annual Congress of the International Astronautical Federation, Sept. 19, 1956; Cox and Stoiko, Spaeepower 176 (1958).

8 Cf. Tumanov, ‘ ‘ Determining the Position of a Ship by Means of an Earth Satellite,” Sovetsky Flot, Dec. 21, 1957, p.3, quoted in 9 Current Digest of the Soviet Press 23 (No. 52, 1958).

9 Pépin, The Legal Status of the Airspace in the Light of Progress in Aviation and Astronautics 5 (1957); McDougal, and Burke, , “Crisis in the Law of the Sea,” 67 Yale Law J. 539, 583 (1958)Google Scholar; Martial, “ State Control of the Air Space Over the Territorial Sea and the Contiguous Zone,” 30 Canadian Bar Bev. 245 (1952).

10 Cf. the U.S. proposal for a zone of inspection in the Arctic, laid before the U.N. Security Council on April 29, 1958, and the counter-resolution submitted by the U.S.S.E. N.Y.Times, April 30, 1958, p. 10.

11 Prank, L.K., “Cultural Implications of Man in Space,” 72 Annals N.Y.Acad. Sci. 195 (1958).Google Scholar

12 Killian Report, p. 7; Clarke, The Exploration of Space 176-177 (1953).

13 Objectives to be served by space exploration as expressed by governmental spokesmen in the United States and the Soviet Union have been limited to a fairly modest range. The Killian Report mentions curiosity, defense, prestige, and the zeal for scientific knowledge. The President's message to Congress dated April 2, 1958, proposing the creation of a National Aeronautics and Space Agency, was confined to recommendations for administrative machinery in aid of these objectives; see N.Y.Times, April 3, 1958. A proposal made on March 15, 1958, by the Ministry of Foreign Affairs of the U.S.S.R. linked the use of nuclear power and the exploration of outer space and stressed the “opportunities for the joint study and harnessing of the still unexplored forces of nature “ by way of preamble. N.Y.Times, March 16, 1958.

14 See the sources cited in Section V below.

15 To suppose that there is a “legal status of space” involves as much reification as to suppose that there is a single “freedom of the seas.” In both cases the question to be asked is, rather, What legal consequences should be entailed by certain activities in order that they be accommodated with other activities under given policies Nor will legal analysis be advanced by distinguishing between jurisdiction over space and jurisdiction over activities in space, or by suggesting that “ the first legal problem of the space age, and of most immediate concern … is the question of who owns space.” Hon. K.B.Keating (Rep., N. Y.), “ The Law and the Conquest of Space,” address before N.Y.State Bar Ass'n., Jan. 31, 1958, p. 6. Cf. Matéesco, “ A qui appartient le milieu aérien”, 12 Rev. du Barreau de la Prov. de Québec 227, 239 (1952), concluding that the attempt to determine the legal status of airspace should be abandoned.

16 See Knauth, Legal Problems of Outer Space in Relation to the United Nations 13 (1958); Committee to Study the Organization of Peace, Strengthening the United Nations 218-219 (1957); Cooper, , “Missiles and Satellites: The Law and Our National Policy,” 44 A. B. A. Journal 317, 321 (1958).Google Scholar

17 Jenks, , ‘’ International Law and Activities in Space,'’ 5 Int. and Comp. Law Q. 99, 102-112 (1956).Google Scholar

18 Cox, “International Control of Outer Space,” Missiles and Rockets, June, 1957, p. 71.

19 Lasswell, , “Men in Space,” 72 Annals N. Y. Acad. Sci. 180, 191 (1958).Google Scholar For perceptive anticipation of some of the more important controversies, see Lasswell, , “The Political Science of Science,” 50 Am. Pol. Sci. Rev. 961, 971 (1956).CrossRefGoogle Scholar

20 Wiley, “Challenges, Old and New, in the Space Age: The Need for an International Space Organization,” address prepared for delivery at Georgetown University, Washington, D.C, Feb. 24, 1958 (mimeo.).

21 N. Y. Times, March 16, 1958.

22 Cf. Secretary of State Dulles, speaking at a news conference on the Soviet protests made against balloon overflights: “ In the main, it is a recognized practice to avoid putting up into the air anything which could interfere with any normal use of the air by anybody else.” N. Y. Times, Feb. 8, 1956.

23 Goedhuis, , ‘ ‘ The Air Sovereignty Concept and United States Influence on Its Future Development,” 22 Journal of Air Law and Commerce 209, 211-216 (1955)Google Scholar; Honig, The Legal Status of Aircraft 6-9 (1956); Academy of Sciences of U.S.S.B., Institute of Law, International Law 318 (Korovin ed., in Russian, 1951); Lisovskii, International Law 158-160 (in Russian, 1955); Kislov and Krylov, “ State Sovereignty in Airspace,” International Affairs, No. 3, 1956, pp. 35, 36-39; Lakhtine, , “Eights over the Arctic,” 24 A.J.I.L. 703, 714 (1930).Google Scholar See the Soviet notes to the U.S. Government protesting the launching of balloons that overflew the Soviet Union, N. T. Times, Feb. 6 and 19, 1956.

24 The possibility that a satellite sent into outer space could be designed to survive re-entry into denser atmosphere was raised in 1956 by Drs. Carl Gazley, Jr., and David J. Masson, who reported that new alloys already developed could withstand the maximum temperatures which it was expected that a satellite would attain upon descending into denser atmosphere. Time, Dec. 3, 1956; N.Y.Times, Dec. 2, 1956. Reports that fragments of satellites already launched (Sputnik I and II ) fell to earth in recoverable condition seem to be unconfirmed. At all events, writers, who supposed that a satellite, upon losing altitude, must necessarily “burn up like a meteor,” might have reflected that parts of some meteors reach the earth. Cf. “ Satellite of the Earth , “ Agitator (a Soviet periodical), Oct. 1957, pp. 6, 9.

25 '’ The Federal Communications Commission … has received a formal protest that radio transmissions of the Soviet Sputniks have violated global agreements for radio frequency allocation. Under the International Telecommunications treaty, certain bands are reserved for worldwide use for distress signals and scientific purposes. The unauthorized use of these bands by the Sputniks may have resulted in serious errors of instrument calibration and interference with aircraft radio and radar beacons. This situation will be aggravated, of course, as more Sputniks and baby moons are launched. A conglomeration of satellites transmitting conflicting signals could endanger lives and would make tracking and transmission virtually impossible.” Rep. Keating, loc. cit. note 15 above, p.9. The accuracy of the comment is less important than the fact that the controversy has arisen. According to a Soviet report, it was in the interest of greater precision of measurement that a frequency was selected which would be less subject to ionospheric distortion. Pravda, April 27, 1958, p. 4.

26 See Kistiakovsky, , ‘ ‘ Science and Our Future,'’ 60 Harvard Alumni Bulletin 548, 549 (1958).Google Scholar

27 The head of the U. S. Rocket and Satellite Research Panel of the IGY has testified before a Congressional committee that Congress should appropriate at least $500,000,000 a year for the National Aeronautics and Space Agency. N. Y. Times, April 29, 1958 The President's Science Advisory Committee referred to a rough estimate of “about a couple of billion dollars, spent over a number of years to equip ourselves to land a man on the moon and to return him safely to earth.” Killian Report, p. 11.

28 Zadorozhnyi, ‘’ The Artificial Satellite and International Law,'’ Sovetskaia Rossiia, Oct. 17, 1957, p. 3.

29 McDougal, and Burke, , ‘ ‘ Crisis in the Law of the Sea: Community Perspectives versus National Egoism,” 67 Yale Law J. 539, 559-565 (1958).CrossRefGoogle Scholar

30 E.g., Munro, “Law for the ‘Heav'n's Pathless Way ‘ , “ N.Y.Times Sunday Magazine, Feb. 16, 1958; Cox, “International Control of Outer Space,” Missiles and Rockets, June, 1957, pp. 68, 71; B.P.-D., “ L'apparition d'engins ‘ extra-atmosphériques’ va exiger 1 élaboration d'un ‘droit international de l'éspace',” Le Monde, Oct. 12, 1957, p. 4; Aaronson, “ Earth Satellites and the Law,” 220 Law Times 115 (Aug. 26, 1955); Commission to Study the Organization of Peace, Strengthening the United Nations 218-219 (1957) ; Pépin, The Legal Status of the Airspace in the Light of Progress in Aviation and Astronautics 7 (1957); Danier and Saporta, “Les Satellites Artificiels,” 18 Rev. Gén. de l'Air 297, 303 (1955); Peng, “ Le vol à haute altitude et 1'article 1 de la convention de Chicago, 1944,” 12 Rev. du Barreau de la Prov. de Québec 277 (1952). Contra, Schaehter, “The Law of Outer Space,” address to International Law Association, American Branch, April 11, 1958 (mimeo.).

31 Until the diffusion of space technology, the number of states acting in outer space may be regarded as somewhat limited for establishing the expectations necessary to the growth of “customary law.“

32 The policies of a dominant state need not favor claims of exclusive authority even by officials of that state; see McDougal and Burke, loc. cit. note 29 above, 566- 569 (1958).

33 McDougal, and Feliciano, , “International Coercion and World Public Order: The General Principles of the Law of War,” 67 Tale Law J. 771 (1958).Google Scholar

34 International Convention Relating to the Regulation of Aerial Navigation (Oct. 13, 1919), Annex A, Preliminary Section; Convention on International Civil Aviation (Dec. 7, 1944), Annex H, Def. (a).

35 International Convention Relating to the Regulation of Aerial Navigation (Oct. 13, 1919), Art. 15 (as modified 1929); see also 2 Proceedings of the International Civil Aviation Conference, Chicago, 1944, p. 1382 (1949).

36 E.g., Danier and Saporta, loc. cit. 297, 300; Sulzberger, ‘’ Air Space—A Need for Definition is Seen, But an Ancient Roman Maxim Goes Begging,” N. Y. Times, Feb. 24, 1958; Peng, loc. cit. note 30 above, 292.

37 E.g., Pépin, loc. cit. note 30 above, p. 3; Cheng, ‘ ‘ Recent Developments in Air Law,” 9 Current Leg. Problems 208, 215 (1956); Ward, “Projecting the Law of the Sea into the Law of Space,” JAG Journal, March, 1957, pp.1, 5; Roy, “Some Current Considerations Affecting the Evolution of Space Law,” Am. Rocket Soc. Pub. 388-57 (mimeo., 1957). Zadorozhnyi, loc. cit. note 28 above, states: “The Soviet artificial earth satellite does not violate the air sovereignty of any state if only because it does not fly in space over other states but the territory of these states by dint of the rotation of the earth passes as it were underneath the orbit of movement of the satellite, which orbit is constant in relation to the earth and stars . “ Cf. Haber, “Space Satellites, Tools of Earth Research,” 109 National Geographic Magazine 486, 495 (1956): “Satellite Appears to Roam the Globe, Which Actually Rotates Beneath It … a satellite's orbit will remain undeviating though the spinning world changes its face from the Americas to Africa.“

38 E.g., Meyer, , “Rechtliche Probleme des Weltraumflugs,” 2 Zeitschr. fur Luftrecht 31, 32-33 (1953)Google Scholar; Jenks, “International Law and Activities in Space,” 5 Int. and Comp. Law Q. 99, 103 (1956); Jacobini, “Problems of High Altitude or Space Jurisdiction,” 6 Western Pol. Q. 680 (1953). Boy, loc. cit., also mentions reasons of this order.

39 An implied general consent to use of outer space for any and all purposes can scarcely be derived from express consent to uses connected with the IGY. Indeed such express consent might perhaps be reasonably interpreted as limiting such inference, at least beyond uses of the same type and under similar auspices as the IGY uses.

40 Murphy, , ‘ ‘ Air Sovereignty Considerations in Terms of Outer Space,'’ 19 Ala. Lawyer 11 (1958).Google Scholar

41 See N.Y.Times, Feb. 23, 1958; Cooper, , “Missiles and Satellites: The Law and Our National Policy,” 44 A.B.A. Journal 317, 320 (1958)Google Scholar (noting suggestions by Haley and others); Simpson, Space Law and the Practicing Attorney 9 (1958). For Hingorani, , “An Attempt to Determine Sovereignty in Upper Space,” 26 U. of Kansas City Law Rev. 5, 11-12 (1957)Google Scholar, not even the sky is the limit. He would have all flight instrumentalities “subject to existing rules and regulations, no matter at what height they float.“

42 Draper, “Satellites and Sovereignty,” JAG Journal, Sept.-Oct. 1956, pp. 23-24.

43 Cooper, , ‘’ High Altitude Flight and National Sovereignty,'’ 4 Int. Law Q. 411, 416 (1951).Google Scholar

44 Ibid, at 418.

45 Cooper, “Legal Problems of Upper Space,” 1956 Proceedings, American Society of International Law 85, at 91.

46 London Times, Sept. 2, 1957, p. 9.

47 Cooper, , “Flight-Space and the Satellites,” 7 Int. and Comp. Law Q. 82, 90 (1958).CrossRefGoogle Scholar

48 Cooper, , “Missiles and Satellites: The Law and Our National Policy,” 44 A.B. A. Journal 317, 321 (1958).Google Scholar

49 See, e.g., Haley, ‘ ‘ Space Law—The Development of Jurisdictional Concepts,'’ Address to International Astronautical Federation, October, 1957 (mimeo., Am. Rocket Soc).

50 White, ‘ ‘ Air and Space are Indivisible,'’ Air Force Magazine, March, 1958, p. 40 at 41.

51 McDougal and Burke, loc. cit. note 29 above, at 574-580.

52 An activity in space might have some military value without affecting security to an impermissible degree. Among the factors to be considered are the character and importance of other values served by the activity, and the character and importance of the military threat. A telescopic satellite, for example, which might observe clouds, stars, or earth terrain, might well be deemed to present too small a threat, by comparison to its over-all utility, to justify any punitive action.

53 See Briggs (ed.), The Law of Nations 330-333 (2d ed., 1952); N. Y. Times, April 9, 1958, p. 66; Rienow, The Test of the Nationality of a Merchant Vessel (1937).

54 Moursi, Conflict in the Jurisdiction of Courts of Different States to Deal with Acts and Occurrences on Board Aircraft (dissertation on file in Yale Law Library, 1955); Yntema, , “The Historic Bases of Private International Law,” 2 Am. J.Comp. Law 247 (1953)Google Scholar. Aircraft have presented a number of special difficulties with respect to problems of investigation, obtaining witnesses, providing for convenience of parties, and in determining the territorial location of events in controversy, with suggestions of possible allocations of authority to states of last departure and first landing. Events on board spacecraft may evoke or occasion similar difficulties in aggravated form, though the responses may be different.

55 Cooper, , The Legal Status of Aircraft 61 (mimeo., 1949)Google Scholar; see 17 Journal of Air Law and Commerce 292 (1950).

56 The extreme illustration is provided in a popular article by Huss, ‘’ Let's Claim the Moon—Now!” Mechanix Illustrated, Feb.-March, 1957, pp. 70, 72: “Columbus stuck the Spanish Flag into the sands of a West Indies beach—and we or the Russians would be perfectly within the concept of international law to claim possession of the Moon by shooting our national flag there by rocket.''

57 See Carl, “International Law—Claims to Sovereignty: Antarctica,” 28 So. Cal. Law Rev. 386 (1955); Toma, , “Soviet Attitude Towards the Acquisition of Territorial Sovereignty in the Antarctic,” 50 A.J.I.L. 611 (1956).Google Scholar In May, 1958, the United States proposed to eleven other states a treaty for “freedom of scientific investigation throughout Antarctica,” continuation of the international co-operation after the end of the IGY, and agreement “ t o insure that Antarctica be used for peaceful purposes only.” N. Y. Times, May 4, 1958, Sec. 1, p. 19. Cf. Danier, “Les Voyages Interplanétaires et le Droit,” 15 Rev. Gen de l'Air 422, 425 (1952); Schachter, “Who Owns the Universe?” Colliers, March 22, 1952, p. 36. The United States proposal on Antarctica may perhaps be considered a trial balloon (launched in a polar orbit) for outer space.

58 States that have not been able to agree upon the width of territorial sea can hardly be expected fully to clarify a common interest in the allocation and regulation of uses of outer space. See N. Y. Times, April 26, 1958, p. 38: “No Sea Limit Set by 2-Month Talk.“

59 McDougal, , “Artificial Satellites: A Modest Proposal,” 51 A.J.I.L. 74, 77 (1957).Google Scholar