cisco de Quintans y Molino, there would be a procession with ban要ers of the cross around the land虹ng site, two masses would be said, and in conclusion of the ceremony, a cross would be erected ...

If the name of the ship were Dom Henrique and the name of the captain Joao Dias, there would be the erection of a cross, a mass would be said and, in con苞lusion, a monument with a coat of arms would be placed ...

If the name of the ship were llya Murometz and that of the captain Vladimir Ossipovitch Kosmodemyanski, there would be a religious ceremony culminating in the ceremonial burying of cop計er shields with a coat of arms ...

If the name of the ship were Queen Elizabeth and that of the captain Sir Cecil Hawkins, there would be a brisk service and the captain would perform the "turf and sprig" ceremony, taking a handful of soil and any small plant in reach to take home with him. Then the British flag would be hoisted ...

And if the name of the ship were Siegfried, commanded by Captain Wolfgang von Greiffen-klau, there would be an even brisker service. Then everybody would stand at attention while the German flag is being hoisted. Possibly the captain would stick his dress saber into the ground, or else (another tradition) pierce his own cap with it.

I don't know what would hap計en if the ship were named the Robert H. Goddard and the cap負ain F. Warren Smith, for all the customs mentioned had gone out of use at the time the thirteen states decided to be independent. But these were the actual cus負oms for taking possession of an island or a coast.

Needless to say, none of these ceremonies would carry any legal validity nowadays and the Inter要ational Court at The Hague wouldn't pay the slightest atten負ion to even the most elaborate ceremony if the participants therein pack up and blast off for home at a later date.

THE law ... Now just a moment. There is no space law yet, is there? The answer to that question is a clear "no" if you mean "legislation" when you say "law." As Rear Admiral Chester Ward said in a lecture on space law during the eleventh annual meeting of the American Rocket Society in November, 1956: "It is a fundamental principle of law衫aking that you can't legislate without facts. That principle ap計lies just as well to the law of space as it does to the law that governs our actions here on the surface of the earth."

Since there are no "facts" yetthat is to say, no spaceships with known performance charac負eristics and, by implication, per苯ormance restrictionsthere can be no legislation.

But just because there are no such "facts" yet, the term "law" may be employed to mean what would otherwise be called a legal principle or a legal attitude. And that certainly exists. I have lis負ened to about half a dozen lec負ures on the foundations and prin苞iples of space law during the last half dozen yearsthey were not evenly spaced, thoughand found enough agreement between the various experts to make a resume possible.

The earliest dissertation on space law saw print in 1932. Its title was just that: "The Law of Space," but in German Das Welt- raum-Recht and it was written by a Dr. Vladimir Mandl, who was then a practicing lawyer in Pilsen, Czechoslovakia. I freely ad衫it that I hadn't looked at it since 1932 when Dr. Mandl sent me a copy and I have just read it to see what he had to say then.

Well, the net yield was tiny, for Dr. Mandl devoted most of his small book to investigating such legal problems as liability for ac苞idental damage, etc., etc, and all that with special reference to Ger衫an law. But he did say that space outside the atmosphere should be regarded as an area without existing or possible sov苟reignty, a point on which all later legal writers fully agreed.

The idea is very simply that open space is compared to the open sea. That no nation has, or can have, sovereignty over the open sea is a legal principle that has been firmly established for centuries.

We tend to think this is so obvious that it need not be mentioned, but there was a timebest nailed down as the time in which Columbus livedwhen countries and even cities claimed ownership and sovereignty over oceans.

The Republic of Venice said it owned the Adriatic Sea. The city of Genoa countered this by own虹ng the Ligurian Sea. Portugal claimed the Indian Ocean and the South Atlantic as hers, while Spain was content to own the Pacific Ocean (and the Gulf of Mexico). And the only reason that the Hanseatic League never said it owned the North Sea and the Baltic was that England, Nor趴ay and Denmark would have put in claims for the North Sea, too, and Denmark, Sweden and the countries of the eastern Baltic might have had strong opinions about the sole proprietorship of the Baltic.

Crowding sometimes has useful aspects.

ARGUMENT that the high seas should be free for the lawful use of all was first pre貞ented by the Dutch jurist Grotius, who is universally recognized as the "Father of International Law." But the fact that no na負ion, or organization of countries like the United Nations, has sov苟reignty over the high seas cer負ainly does not make every ocean a lawless place. It developed its own law, based on practices which navigators found either efficient or convenient, and which were later formulated.

The statement that the laws which govern the sea should be extended to apply to interplane負ary space was voicedfor the first time, as far as I knowby Oscar Schachter, deputy director of the Legal Department of the United Nations, on the occasion of the First Space Travel Sympo貞ium at the Hayden Planetarium in New York City in October, 1951appropriately enough, on Columbus Day.

But in order to gain the open sea, you have to traverse coastal waters, and in order to gain open space, you have to traverse the atmosphere. As regards coastal waters, the legal situation is clear; the problems were thrashed out and settled a century ago. The first three miles of ocean are con貞idered to be under the sover苟ignty of the country which exercises sovereignty over the shoreline.

It has often been said that this figure of three miles was accepted because that used to be the range of the old coastal batteries. This sounded like a logical and con赳incing reason. Unfortunately, one could draw the conclusion from it that things belong to you for as far as you can shoot. That kind of reasoning would lead to declaring that "might is right" even legally.

Personally, I never quite be衍ieved that the three-mile zone had been derived from the range of the coastal guns, because a three-mile range did not become possible until many years after the limit had been accepted. And recently I learned that "three miles" was just a more modern way of expressing an older meas赴rement, namely, one marine league.

There is something else about this three-mile zone which strikes me as either odd or significantI don't know which. If what fol衍ows should be just a coincidence, it is a rare one.

There is a simplified formula which says you multiply the square root of h by 1.17 and you get D. The letter h stands for ele赳ation above sea level and must be expressed in fact. The result D must be read in nautical miles and gives you the distance of the horizon at sea. If you take h to be six feet, the result is three miles (not nautical miles).

In other words, the three-mile limit coincides with the actual distance of the horizon for a man standing at the seashore. Remem苑er that his feet will not be at ac負ual sea level but a few inches above it. The refraction in the atmosphere is included in that conversion factor of 1.17.

TO RETURN to the legal aspects: most countries have accepted the three-mile limit and the United States recognizes no other, although there are a few countries which, for their own purposes (such as prosecution of smuggling), claim sovereignty over a longer distance, usually ten kilometers.

But while the countries "own" that much of the ocean, their ownership is not absolutely exclu貞ive. There are exceptions. If a vessel, in order to pass from one tract of open sea to another one, has to navigate through sovereign waters, it can do soit has the right of "innocent passage." (Whether naval vessels, in time of peace, have the right of inno苞ent passage is disputed, but in time of peace, this problem is usually circumvented by prior agreement.)

When lawyers say "innocent passage," they usually mean freighters and passenger liners, but it also applies to rescue mis貞ions or scientific expeditions.

Now we come to the main dif苯iculty. It would be nice if one could reason that, since space is analogous to the open sea, the atmosphere is analogous to the three-mile zone, with the right of innocent passage for all. If we had had peace ever since the in赳ention of the airplane, one prob苔bly would reason that way. But there are two complications, each one major.

The first is the very obvious right of self-defense, and there are more military aircraft than pas貞enger liners and air freighters.

The second is that no figure has so far been universally accepted as the limit of the atmosphere.

When you ask a scientist what seems to be a simple question, "How deep is the atmosphere?" he will look somewhat unhappy, draw a deep breath, stall by light虹ng a pipe, cigar or cigarette and say: "What characteristics do you have in mind?" The problem is that you still get some effects, like the reflection of short radio waves, several hundred miles up. On the other hand, it seems un衍ikely that you'll find noticeable air resistance, even at speeds of several miles per second, above perhaps 120 miles.

About two years ago, in a dis苞ussion of this difficulty, a law expert said that the legal limit might be determined by the height at which one can actually fly. Unfortunately I could not help him there. Jets and other air-breathing engines won't be able to go higher than, say, 70,000 feet.

But a large plastic balloon can go to 125,000 feet and a rocket-propelled plane still higher. Whether these "fly" or not is purely a question of definition. Is "flying" just moving through a space which still contains a little atmosphere, or is the term re貞tricted to those altitudes where you still obtain some aerody要amic "lift"?

This, too, remains to be decided.

OUR next step in disentangling the legal problem is obvi觔usly to find out what is the "law" in the air, the air in which we are now flying if we want to get from one city to another in comfort and with dispatch. Here the situation is sad, partly be苞ause of past experiences, partly because of old aspects.

The Romans held that the landowner also owned the air above it "to the sky." This idea was perpetuated in English com衫on law, which said (still in Latin): Cujus est solum ejus est usque ad coelum, which later was expressed in English as: "He who owns the soil, or surface of the ground, owns, or has an exclusive right to, everything which is upon or above it to an indefinite height" (I don't know what prac負ical importance that had, except when it came to the ownership of a bird shot on the wing.)

This personal and private own苟rship of the air and the sky above it was granted by the sov苟reign and "could be asserted only against other private citi述ens; the sovereign never parted with its paramount right to con負rol the space above its territory." (Quotation from Andrew G. Haley's lecture Basic Concepts of Space Law, presented at the An要ual Meeting of the American Rocket Society in Chicago in November, 1955; published in the society's journal Jet Propulsion, November issue, 1956.) In short, the attitude was the same as with the oceans.

As long as there was no human flight at all, or, at a later date, merely an occasional balloon, there was no legislation about the air. Lawyers say: Minima non curat praetor, which one may translate as: "Minor matters do not concern legislators." Not only was there no legislation, there was not even any theoretical reason虹ng.

The invention of the airplane changed this; in fact, one man was actually ahead of events. In 1902, at a meeting of the Insti負ute of International Law, an ex計ert named Paul Fauchille sub衫itted a draft of a proposed convention on the regulation of aerial navigation. According to Haley, this draft was approved in a modified form in 1906.

Said Haley: "The convention would have made the air free to commerce and travel, just as the sea. The provision for national security measures, while vague and indeterminate, was a reason苔ble reservation of sovereign rights to protect against civil negligence or hostile action through the air, but it was not intended that any nation should usurp the air completely. The proposal was never implemented in an interna負ional convention."

I presume that it was still a case of minima non curat praetor with the few airships and planes which were around. At any event, nobody thought of prosecuting Bleriot when he flew the English Channel and, so to speak, violated English air space.

BUT then the First World War came and it was one of the neutrals (generally a peaceful country in recent centuries) which had to defend vigorously the idea of sovereignty over its air space. This was Holland, ly虹ng as it does directly on the air route between England and Ger衫any.

Of course there were violations. A couple of German zeppelin air貞hips drifted off course in foggy weather (zeppelin ships, as a mat負er of principle, hid in drifting clouds to avoid being spotted, a method that may protect you but does not improve your naviga負ion) and partly disabled sea計lanes had to land in Dutch waters.

Right after the First World War, in October, 1919, the Paris Convention for the Regulation of Air Navigation was signed and "freedom of the air" was com計letely ruined in the very first ar負icle of this convention: Les Hautes Parties Contractantes re- connaissent, que chaque Puissance a la souverainete complete et ex苞lusive sur l'espace atmospherique au-dessus de son territoire; "The High Contracting Parties recognize that every Power has complete and exclusive sovereign負y over the air space above its territory."

Note the "complete and exclu貞ive," and, of course, this included sovereignty over the three miles of ocean offshore. In practice, this complete and exclusive sovereign負y was somewhat limited by rules of conduct.

The rules established, on the one hand, the right of innocent passage for non-military aircraft and, on the other hand, the right to set up "prohibited zones" which could not be flown over. Butand this turned out to be the worst feature in the long run these rights applied only to those countries that signed the conven負ion. Nations which were signato訃ies had the right to make sepa訃ate agreements with nations which were not, but in reality they mostly refused to make such agreements and spent their energy in keeping the non-signatories out.

As for the United States, its representatives signed the con赳ention with the provision that American aircraft could fly over American "prohibited zones." But the Senate did not ratify the con赳ention, so the United States ceased to be a signatory. How苟ver, we observed the rules just the same and finally made a gen苟ral Western Hemisphere right-of-innocent-passage agreement.

There was a welter of addi負ional conferences dealing with all kinds of side issuessuch as cases of infectious disease discov苟red on an international flightand then the Second World War came. Again each nation, and most especially the neutrals, had to assert all their rights vigor觔usly.

NEAR the end of the war, another important convention on civil aviation took place, this time in Chicago. It ended in De苞ember, 1944, but again the main article read the same, almost word for word, as the first article of the Paris convention. Some負hing new had been added, how苟ver: "No aircraft capable of be虹ng flown without a pilot shall be flown without a pilot over the territory of a contracting state without special authorization by that state." This was the first rec觔gnition of the existence of guided missiles.

The possibilities and capabili負ies of aerial warfare being what they are, it is both natural and logical that every nation insist on absolute sovereignty over its "air space." The real trouble is that there is no definition of what is "air" in the term "air space." Since there is no natural upper limit to the height at which "air苞raft capable of being flown with觔ut a pilot" (read: missiles) can fly, one might argue that there is no upper limit to the "air space." In the light of astronomical facts, this argument is plain nonsense.

As C. Wilfried Jenks of the In負ernational Labor Office in Ge要eva wrote in the International and Comparative Law Quarterly (January, 1956):

"Any projection of territorial sovereignty into space beyond the atmosphere would be inconsistent with the basic astronomical facts. The rotation of the earth on its own axis, its revolution around the sun, and the motions of the sun and the planets through the galaxy all require that the rela負ionship of particular sovereign負ies 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 sover苟ignties 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 cir苞umstances, the concept of a space cone of sovereignty is a meaningless and dangerous ab貞traction."

Admiral Ward, in his recent lecture, after saying in different words what I just quoted from Jenks, could indicate a way out:

"Professor Cooper, and other distinguished authorities, have pointed out that our development of a law of outer space is not re貞tricted by our present agree衫ents affirming each nation's sov苟reignty over the air, or the 'air space,' above it. These agree衫ents relate strictly to the 'air space.' They apply only as far as the upper limits of the region in which air is sufficiently dense to support the flight of conventional aircraftthat is, those aircraft supported through reaction with the air. We are therefore free to develop a law of outer space, to apply in areas above this region of relatively dense air, without re貞triction from our existing agree衫ents relating to 'air space.' The lawmakers wait only for the phys虹cal facts of space to be supplied by the explorers, the scientists, the mathematicians and the phys虹cists. With the physical facts in hand, we can attempt to set the upper limits of national sover苟ignty."

Admiral Ward went on to state that such an upper limit of sover苟ignty would not hamper national defense. The three-mile limit also does not hamper our naval opera負ions and other defense measures at sea.

LET us say now that agreements have been reached, signed and ratified which set the upper limit of the "air space" at 50 kilometers, which is almost precisely 31 miles. Then we would get the following picture:

Up to a height of 31 miles, each nation has the "complete and ex苞lusive sovereignty" first accepted in the Paris convention. Above that, there would be a zone with the right of innocent passage. For scientific reasons, this zone should not be lumped with "open space," because some physical phenome要a due to a highly attenuated atmosphere can still be observed.

Open space may then be said to begin at a height of 250 kilo衫eters or 155 miles (I am put負ing kilometers first because, by Act of Congress, the customary American standard measurements are defined in terms of metric measurements), so that there are three legal zones.

The bottom zone, with its com計lete and exclusive sovereignty, would not compare to the three-mile zone but rather to rivers and inland lakes. The next zone, from 50 to 250 kilometers, would be comparable to the three-mile zone. And space above 250 kilo衫eters would be comparable (better: analogous) to the high seas.

But there is still an amusing wrinklethese three zones would logically be in existence only above land. They would not exist for three-quarters of the Earth's surface, for over the high seas, the freedom of the seas would ex負end into space with no legal zone in between. Or else you may say that the freedom of space would end where your ship gets wet with salt water. Then you are in the free and open seas.

Legal discussions may be inter苟sting, but how does all this ap計ly to the coming satellite shots? By an interesting combination of natural facts, these satellite shots happen to be about as "legal" as they can possibly be.

The Vanguard rockets, the sat苟llite carriers, will be fired from Patrick Air Force Base in Flor虹da. American-made, they take off from American soil and, for a time to be measured in seconds, they will be in American air space above American waters. When they leave American air space, they are in the free air over the free ocean. By the time land is below again (the southern part of Africa), they have passed out of any air space and are in free space.

Of course, they are legal in an觔ther sense, too. They are part of the International Geophysical Year. Some sixty nations have not only not voiced any objections, but have promised support and assistance in observing the satel衍ites. So thats that.

NOW how about that ship that lands on Mars and its cap負ain who takes possession with or without ceremonies? In the first place, it is possibleeven probablethat an agreement might be reached in the mean負ime that all "land" beyond the earth will be under the jurisdic負ion of the United Nations, unless inhabited by indigenous intelli茆ent and reasoning beings. (In the latter case, naturally, they would have sovereignty.) All rights, including mining rights, if any, would take the form of con苞essions, leases or licenses from the United Nations.

But suppose it is not a case of the United Nationswhich really means nations acting together in貞tead of separately but still a case of separate nations, gener苔lly at peace. There are some in負eresting analogies in the past and I'll quote Bouvet Island as an example. It is a small island, situ苔ted several hundred nautical miles to the SSW of the southern tip of Africa. The island itself is roughly circular, with a diameter of about five miles measured east to west and about half a mile less measured north to south. It is es貞entially just one large dead vol苞ano, completely covered with glaciers.

Bouvet Island was discovered in 1739 by the French captain Lozier Bouvet. He thought it was just a northern cape of a much larger southern continent and named it Cap de la Circondsion. He made no legal claims. Since the area where the island is lo苞ated is also characterized by the worst climatic conditions possible frequent storms, long-lasting fogs, drifting icethe island was "lost" for many years.

It was found again by the Eng衍ish captain James Lindsay in 1808. He tried to land but could not; by sailing around it, however, he established that it was an island. In December, 1825, the English ship Sprightly under Cap負ain George Norris found the island, sailed around it, and Cap負ain Norris took possession of it (from shipboard) for the United Kingdom in the name of King George IV.

There followed another period of uncertainty whether the island existed at all, but in November, 1898, the German oceanographic expedition with the steamer Valdivia found it again. The Ger衫ans decided that landing would be very difficult and would not accomplish anything anyway, so they did their charting and map計ing from aboard their comfor負able steamer. And although they named the largest glacier they could see the Kaiser Wilhelm Glacier, they had no aspirations as to ownership. They were merely establishing the precise location and size of this British possession.

BUT in December, 1927, the Norwegian vessel Norvegia under Captain Axel Homvedt reached Bouvet Island. A landing party went ashore and took for衫al possession for Norway in the name of King Haakon VII. Eng衍and objected, pointing to its Cap負ain Norris. England lost the dis計ute, for the men of the Norvegia had actually landed.

But it cannot be denied that Norway's title to the island, ac訂uired in 1928, is none too solid. Thay did land, which was deemed more important than prior dis苞overy from a distance. But they have never exercised their sover苟ignty. And this has come to be an important point; if somebody else sneaked in during the antarc負ic night and established a colony, he might win out over Norway, since Norway has obviously been negligent in asserting its rights by possession.

The history of Bouvet Island may, in the future, become fa衫ous because of citations in legal arguments. In the meantime, it indicates that nobody will be able to "own" a planet by just saying so.

THE MERE discovery established ownership then the naked-eye planets Mercury, Venus, Mars, Jupiter and Saturnwould be common property. They were dis苞overed by the Babylonians who left no heirs and assigns. Our moon would be community prop苟rty, too.

Otherwise, Germany and Eng衍and would fare best, with the largest chunks of celestial real estate: Germany could claim Neptune and England Uranus. But Uranus was discovered by Herschel, who was German-born, and though he made the discov苟ry from English soil, he may not yet have been an English citizen at that moment, which would pro苓uce an interesting legal problem.

The Netherlands would get Ti負an, Saturn's largest moon. Italy would get the four largest moons of Jupiter and possibly several of the smaller moons of Saturn, de計ending on whether their discov苟rer, Cassini, was still an Italian or already a Frenchman when he found them.

England, in addition to Uranus, would get all the four large moons of that planet, the larger moon of Neptune and two of the minor satellites of Saturn. The United States would get the two moons of Mars, a handful of the minor moons of Jupiter, one minor moon of Saturn, the smallest moon of Uranus, the smaller of the two moons of Neptune and the planet Pluto. Of course, practically all of us would "own" at least a few asteroids.

But remember, discovery by it貞elf does not count. You've got to land on your asteroid and stay there to make it legal.

WILLY LEY



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