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Some Legal Implications of the U-2 and RB-47 Incidents

Published online by Cambridge University Press:  28 March 2017

Oliver J. Lissitzyn
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The purpose of this comment is not to pass legal or political judgment on the actions of the governments involved in the U-2 and the RB-47 incidents of 1960, but to note and analyze, now that the passions aroused by the incidents have subsided, some of the legal implications of the positions taken by these and other governments in connection with these incidents, particularly with respect to sovereignty and jurisdiction in space.

Type
Editorial Comment
Information
American Journal of International Law , Volume 56 , Issue 1 , January 1962 , pp. 135 - 142
Copyright
Copyright © American Society of International Law 1962

References

1 Cf. Wright, , “Legal Aspects of the U-2 Incident,” 54 A.J.I.L. 836 (1960)Google Scholar.

2 For English translations of Soviet statements and documents on the TT-2 incident and the Powers trial, see Events Incident to the Summit Conference, Hearings before the Committee on Foreign Relations, U. S. Senate, 86th Cong., 2d Sess., May 27–June 2, 1960 (hereinafter cited as Senate Hearings, 1960), pp. 175, 181, 188, 195, 203, 220, 235; and The Trial of the U 2 (Translation World Publishers, Chicago, 1960). The record of the Powers trial has been published in Russian as Sudebnyi Protsess po Ugolovnomu Delu Amerikanskogo Letchika-Shpiona Frensisa G. Pauersa (1960).

3 Senate Hearings, 1960, cited above, and documents there printed; and transcript of President Kennedy’s first news conference, New York Times, Jan. 26, 1961. See, further, 42 Dept. of State Bulletin 816–818, 851–853, 900, 905 (1960); 43 Ibid. 276–277, 350, 361 (1960).

4 See below.

5 New York Times, Jan. 26, 1961.

6 61 Stat. 1180; T.I.A.S., No. 1591.

7 See, e.g., Premier Khrushchev’s remarks, May 11, 1960, Senate Hearings, 1960, cited note 2 above, at 208. At a news conference on the same day, President Eisenhower said that as far as he knew there had never been any Soviet reconnaissance flights over the United States. Ibid, at 201. On Dec. 14, 1960, the U.S.S.B. apologized to Finland for intrusion of a Soviet aircraft into Finland due to bad weather. New York Times, Dec. 15, 1960.

8 Vozdushnyi Kodeks SSSE (2d ed., 1936). Translation.

9 For a contrary view, see Beresford, , “Surveillance Aircraft and Satellites: A Problem in International Law,” 27 Journal of Air Law and Commerce 107, at 112 (1960)Google Scholar.

10 Cf. for example, U. S. Federal Aviation Act of 1958, sec. 1108, 72 Stat. 798, 49 U.S.C. 1508.

11 See, e.g., translations of articles by Zadorozhnyi and Galina in U. S. Senate, Committee on Aeronautical and Space Sciences, Legal Problems of Space Exploration: A Symposium, Sen. Doc. No. 26, 87th Cong., 1st Sess., at 1047, 1050 (1961); Kovalev, and Cheprov, , “Artificial Satellites and International Law,” 1958 Soviet Tear Book of International Law 128 Google Scholar (with English summary); Korovin, , “International Status of Cosmic Space,” International Affairs (Moscow), No. 1 (1959), p. 53 Google Scholar; “Conquest of Outer Space and Some Problems of International Relations,” International Affairs (Moscow), No. 11 (1959), p. 88; Osnitsky, , “International Law Problems of the Conquest of Space,” 1959 Soviet Tear Book of International Law 51 Google Scholar (with English summary); Kovalev, and Cheprov, , “O Razrabotke Pravovykh Problem Kosmicheskogo Prostranstva,” Sovetskoye Gosudarstvo i Pravo, No. 7 (1960), p. 130 Google Scholar.

12 But at the trial Powers made no such plea.

13 New York Times, Jan. 26, 1961. During the Presidential campaign of 1960, Senator Kennedy said that the U-2 flights “were not in accordance with international law.” Ibid., Oct. 8, 1960. The U. S. Senate Committee on Foreign Relations, in its report on the events relating to the Summit Conference, made no attempt to defend the U-2 flights as having been conducted above the airspace subject to the sovereignty of the Soviet Union, but suggested that “the U-2 incident has pointed up the need for international agreement on the question of how high sovereignty extends skyward.” Events Relating to the Summit Conference, Sen. Rep. No. 1761, 86th Cong., 2d Sess., June 28, 1960, at p. 26; to the same effect, testimony of Secretary of State Herter, Senate Hearings, 1960, cited note 2 above, pp. 3–107. Senator Fulbright, chairman of the Senate committee, suggested in a speech that the U-2 flights violated Soviet sovereignty. 106 Cong. Rec. 14734–14737 (June 28, 1960).

14 U. N. Security Council, 15th Year, Official Records, 858th, 859th, 861st, 863rd and 883rd Meetings (May 24–27 and July 26, 1960), Docs. S/P.V. 858, 859, 861, 863, 883.

15 Ibid., 858th Meeting (May 24, I960), Doc. S/P.V.858.

16 Cf. Lissitzyn, , “The Treatment of Aerial Intruders in Recent Practice and International Law,” 47 A.J.I.L. 559 (1953)Google Scholar.

17 U.N. Security Council, 15th Year, Official Records, 857th Meeting (May 23, 1960), Doc. S/P.V.857.

18 Ibid., 880th Meeting (July 22, 1960), Doe. S/P.V.880.

19 U.N. Docs. S/4314 and S/4315; U.N. Security Council, 15th Tear, Official Records, 857th Meeting (May 23, 1960), Doc. S/P.V.857.

20 Ibid., 860th Meeting (May 26, 1960), Doc. S/P.V.860.

21 Ibid., 863rd Meeting (May 27, 1960), Doc. S/P.V.863.

22 U.N. Doc. S/4328.

23 U.N. Security Council, 15th Year, Official Records, 857th to 863rd Meetings (May 23–27, 1960), Docs. S/P.V.857–863.

24 New York Times, July 13, 1960, Jan. 26, and March 4, 1961; 43 Dept. of State Bulletin 163–165, 209–212, 274–276 (1960); U.N. Security Council, 15th Year, Official Records, 880th to 883rd Meetings (July 22–26, 1960), Docs. S/P.V.880–883.

25 U.N. Docs. S/4384, S/4385 and S/4406.

26 U.N. Doc. S/4409/Rev.l.

27 U.N. Security Council, 15th Year, Official Records, 883rd Meeting (July 26, 1960), Doc. S/P.V.883. Poland also voted against the U. S. draft resolution. The Soviet Union also vetoed a resolution proposed by Italy which would have expressed the hope that the International Committee of the Bed Cross would be permitted to fulfill its tasks with respect to the members of the RB-47 crew.

28 U.N. Security Council, 15th Year, Official Records, loc. cit. note 24 above.

29 U.N. Security Council, 9th Year, Official Records, 679th and 680th Meetings (Sept. 10, 1954), Docs. S/P.V.679, 680. Freedom of flight over the high seas is affirmed in Art. 2 of the 1958 Geneva Convention on the High Seas, 52 A.J.I.L. 842 (1958); 38 Dept. of State Bulletin 1115 (1958).

30 See U. S. Naval War College, International Law Situation and Documents, 1956, pp. 577–600; Murchison, The Contiguous Air Space Zone in International Law (1957). Cf. Brock, , “Hot Pursuit and the Eight of Pursuit,” 13 JAG Journal 18 at 20 (1960)Google Scholar; and Pender, , “Jurisdictional Approaches to Maritime Environments: A Space Age Perspective,” 15 Ibid. 155 (1961)Google Scholar.

31 See New York Times, Feb. 10–13, 1961; Pravda (Moscow), Feb. 11–13, 1961.

32 Pravda (Moscow), Feb. 12, 1961. Translation.

33 See, e.g., the articles by Kovalev and Cheprov and by Osnitsky, cited note 11 above. Cf. also Zhukov, , “Space Espionage Plans and International Law,” International Affairs (Moscow), No. 10 (1960), p. 53 Google Scholar.