COMMENTS ON SPACE LAW

MICHAEL AARONSON
OCTOBER 1960, Professor John Cobb Cooper, an acknow-
~N ledged United States authority on Air Law, presented a lecture
at Leiden University entitled &dquo; Fundamental Questions of Outer
Space Law.&dquo; This lecture has been printed elsewhere and conforms
almost entirely with the contents of papers which Professor Cooper
has published over the past twelve months. They appear to sum-
marize his testimony before the U.S. House of Representatives
Select Committee on Astronautics and Space Exploration in April
1958. It may be presumed, therefore, that Professor Cooper, who
for some years has been evolving his theories on Space law, con-
centrating to a large extent on the altitude of territorial sovereignty,
has now formulated his definitive standpoint.
Professor Cooper expounded on the following four questions.
1. What is meant by the term Outer Space?
2. What is or should be the legal status of Outer Space?
3. What are the independent rights of sovereign States in Outer
Space?
4. What is the legal status of satellites and future spacecraft?
It is proposed to comment on these four questions in the same
order as presented in Professor Cooper’s lecture.
What is meant by the term Outer Space ?
Professor Cooper states that the United Nations, Heads of State,
diplomats and jurists continue to use the term &dquo; Outer Space &dquo;
as meaning a geographic area but as yet without any agreed defini-
tion. He vigorously opposes the view expressed by the original
United Nations Ad Hoc Committee on the Peaceful Uses of Outer
Space that the question of determining where air-space ends and
Outer Space begins is not a question requiring priority of treatment.
He does not believe that the Rule of Law can be established with
certainty as to Outer Space, which he describes &dquo; as a finite geo-
graphic area &dquo;, unless the boundaries of that area are known and
understood. At that point he indicates that he has long been in
agreement with the view expressed by the same United Nations
report that the upper boundary of the airspace and the lower
boundary of Outer Space do not necessarily coincide.
It is conceded from the outset that Professor Cooper is quite
correct in drawing attention to the loose use of the term Outer
Space. Yet, one wonders whether the matter is assisted further by
&dquo;
the description of this region as a finite geographic area.&dquo; The
clue, however, appears to be given in the definition which Professor
Cooper proposes should be included in an international convention
which reads.
&dquo;
Outer Space, for the purposes of this convention is defined
as the area whose lower or inner boundary is the lowest altitude

135
 above the Earth’s surface at which an artificial satellite may be
put in orbit at leastonce around the Earth, and whose upper or
outer boundary is the outer limit of our solar system.&dquo;
From this it appears that Professor Cooper is referring to solar
Space. This was described by John C. Hogan in 1957 as the area
of the solar system as defined in astronomy.l Mr. Hogan then
pointed out that the term &dquo; solar system &dquo; is used in astronomy to
refer to the sun and the several bodies that rotate around it. These
include the Earth and its satellite the Moon as well as other known
planets including Mercury, Venus, Mars etc., the outermost of which
is Pluto.
Professor Cooper recites the well known legal status of airspace
before making his suggestion for defining the lower limits of Outer
Space. In doing so he describes the evolution of some of his own
thoughts in this connection and various scientific views expressed
about the density and constituents of the atmosphere at different
heights. Among other things he adds the interesting piece of
information that biologists hold that at about 100 miles above the
Earth’s surface human blood will boil. In passing, one may note
that this, of course, does not preclude a similar possibility at far
lower altitudes, provided the temperament is sui~ciently ardent.
From all this Professor Cooper implies that the lower boundary
of Outer Space should be fixed by international agreement as the
lowest altitude above the Earth’s surface at which an artificial
satellite may be put in orbit around the Earth. He maintains that
below this boundary most objects moving from Outer Space towards
the Earth would be destroyed by heat from atmospheric friction.
In this connection, it would appear that he has lost sight of the
speed with which science and technology are progressing in Space
operations.
Having argued that Outer Space should commence at some point
which is the lowest capable perigee of an artificial Earth satellite,
Professor Cooper maintains that the wide acceptance of such an
agreement would enable the Rule of Law to be applied without
difficulty and with reasonable certainty in a reasonably definite
geographic area. However, he immediately follows with the state-
ment that in fixing his suggested lower limit for Outer Space, no
decision is required as to whether the absolute sovereignty of a
subjacent State extends upwards to this lower limit of Outer Space
or whether, as he has previously urged
&dquo;
it would be well to admit the existence of an intervening area
in which national rights of transit might be accepted, par-
ticularly for the purpose of launching artificial satellites over
1
"Legal Terminology for the Upper Regions of the Atmosphere and for the
Space Beyond the Atmosphere." The American Journal of International Law,
pp. 362-375, Reprinted in Symposium of Space Law U.S. Government Print.
Off. 1959. See also " Discovery " May 1958 p. 208 Report of Prof. Sydney
Chapman’s lecture delivered to the Royal Astronomical Society.
136
 the land and waters of adjacent States without violating territory
and sovereignty of the latter, and similarly of bringing back
national Space craft to national territory above the airspace
of the adjacent State but below the limit of Outer Space.&dquo;
It is extremely difficult to understand from Professor Cooper’s
arguments why the term Outer Space should be used at all. As
he says the legal status of airspace is well known and undisputed.
There is now a well established principle of international law that
a State has exclusive control over the airspace above its territory.

He, more than any one else over the years, has persistently drawn
attention to the fact that for practical purposes the airspace is that
part of the Earth’s atmosphere in which aircraft can operate. He has
always related airspace to that part of the area above the Earth’s
surface where the atmosphere is suf~ciently dense to contribute to
aerodynamic lift for flight instrumentalities. It follows that the
pragmatic approach would be to establish an arbitrary limit of
altitude related to that part of the Earth’s atmosphere in which
aircraft can operate, at say 25 miles above the Earth’s surface.
Above that altitude International Space would commence. The
outer limit of International Space would be the outer limit of Solar
Space. For the present it does not appear to be practical to discuss
the rule of law beyond that limit of International Space.
International Space will be subject to different uses, not all of
which are connected with flight. It will, therefore, be necessary to
evolve different legal systems governing those different uses of
international Space and relate them, wherever appropriate, to
existing international legal systems governing uses of areas above the
Earth’s surface such as the existing rules governing flight in national
airspace and the existing rules governing telecommunications.
YTjhat is or should be the Legal Status of Outer Space ?
Professor Cooper maintains that it is impossible to apply inter-
national legal principles in any geographic area whose legal status
is unknown. He argues that the legal status of Outer Space is as
vague and as uncertain as was the legal status of the high seas
before Grotius, in the Mare Liberum, focused attention on the need
of the world to accept the doctrine of the freedom of the seas.
He then cites the following extract from the judgment of the American
jurist, Mr. Justice Storey, in the case of The Marianna Flora (1826)
which he urges as a sound solution of the legal status of Outer
Space.
&dquo;
Upon the ocean, then, in time of peace, all possess an entire
equality. It is the common highway of all, appropriated
to the use of all ; and no one can vindicate to himself a superior
prerogative there. Every ship sails there with the unquestionable
right of pursuing her own lawful business without interruption;
but whatever may be that business she is bound to pursue it in
such a manner as not to violate the rights of others.&dquo;
137
 It is difficult to understand why Professor Cooper should
consider that the legal status of international Space is vague and
uncertain and why he should wish to draw a comparison between the
legal status of international Space to-day and the legal status of the
high seas as it was in the centuries before Grotius. A similar attempt
to move backwards was made in arguments before the Privy Council
in 1934 In re Piracy Jure Gehtium.~ Then it was argued that the
matter under consideration hinged around a decision delivered by
Sir Charles Hedges in 1696. However, Viscount Sankey L.C. stated
that every case must be read secundum subjectam materiam and must
be held to refer to the facts under dispute. The Lord Chancellor
continued.33
&dquo;
But over and above that we are not now in the year 1696,
we are now in the year 1934. International law was not cry-
stallised in the 17th century, but is a living and expanding
code.&dquo;
He then cited in support the following extract from a treatise
on international law, by the English textbook writer Hall.

&dquo; Looking back over the last couple of centuries we see inter-
national law at the close of each fifty years in a more solid
position than that which it occupies at the beginning of the
period. Progressively, it has taken firmer hold, it has extended
its sphere of operation, it has ceased to trouble itself about
trivial formalities, it has more and more dared to grapple in
detail with the fundamental facts in the relations of States. The
area within which it reigns beyond dispute has in that time been

infinitely enlarged, and it has been greatly enlarged within the

memory of living man.&dquo;
The Lord Chancellor concluded with the following statement.
&dquo;
Again another example may be given. A body of international
law is growing up with regard to aerial warfare and aerial
transport, of which Sir Charles Hedges in 1696 could have had no
possible idea.&dquo;
Since 1934, there has been considerable development in the
realms of international law and even the matter heard and con-
sidered by the Privy Council In re Piracy Jure Gentium, in the light
of recent developments,4 might be differently reported to-day.
Nevertheless, the Lord Chancellor’s reference to the growth of a
body of international law related to aerial warfare and aerial
transport would certainly have even greater substance to-day.
As to the legal status of international Space matters have pro-
gressed beyond the process of inductive reasoning and opinions
of juris consults or text-book writers. The General Assembly of the
2
1934 A.C. 586.
pp. 592 and 593.
3
See Cmd. 584 Ann. II " Convention on the High Seas ", (Article 15) which
4
has been ratified by the United Kingdom, March 14, 1960 ard by the Soviet
Union March 22, 1960.
138
 United Nations Organisation at its thirteenth session adopted a
resolution on the peaceful uses of Outer Space. The preamble,
among other things recognises the common interest of mankind in
Outer Space and refers to the provisions of Article 2 paragraph 1,
of the Charter, which states that &dquo; the Organisation is based on the
principle of the sovereign equality of all its Members.&dquo;
Though, the General Assembly is not a legislative but only a
deliberative body it is, nevertheless, composed of Member Govern-
ments and the delegates attending its sessions are authorised
representatives of relevant Member Governments whose credentials
are rigorously scrutinised before they can participate in the General
Assembly’s deliberations.
During the course of the Assembly’s deliberations it became
apparent that Member Governments were in accord that the subject
of Space had raised many entirely new legal problems not sufhciently
covered by international law as at present constituted. For example,
it had not been decided whether to determine the upper limits of
territorial sovereignty and if so on what principles. However,
there was no sign that States were reconsidering the concept of
complete and exclusive sovereignty over the atmosphere above their
territory. That remained valid as a general principle of international
law of universal application. Most Governments, however, dis-
tinguished between territorial atmosphere and Space. There was
general agreement that in formulating new rules of international
law appertaining to Space, analogy with the law of the sea would not
prove helpful in many respects. However, it was abundantly clear
that Governments considered that whatever deficiency might exist
in international law one thing was certain. The legal status of
Space and the extra-terrestial bodies therein must be considered,
in relation to Earth’s international community, as res communis
omnium. As such it is incapable of exclusive occupation or acquisi-
tion. Moreover, many Member Governments indicated that they
considered that the concept of freedom of international Space and
the extra-terrestrial bodies therein must be regulated by new rules
of international law designed to keep pace with the different uses of
international Space which were anticipated.
What are the Independent Rights of Sovereign States in Outer Space?
Professor Cooper states that whatever the legal status of Outer
Space the right of every State in the international community to
act for its individual self protection and self-defence must be
acknowledged and preserved.
In tracing the historical development of United States views on
the right of self-defence, Professor Cooper cites the following
statement made by Chief Justice Marshall of the United States
Supreme Court in 1804.5
&dquo;
The authority of a nation within its own territory is absolute
Church
5 v Hubbart, 2 Cranch 187.

139
 and exclusive.... But its power to secure itself from injury
maycertainly be exercised beyond the limits of its territory.&dquo;
From this Professor Cooper deduces that every State has a right
&dquo;
to secure itself from injury &dquo; in Outer Space beyond its territorial
airspace. In support he cites the establishment in 1950 by the
United States and Canada of air defence identification zones around
parts of their shores even though the airspace over the high seas
is not territorial airspace and, as he states, enjoys the same inter-
national status as the high seas.
There is considerable substance to Professor Cooper’s arguments
under this head. In present circumstances no State can risk relaxing
its vigilance in matters of defence and the argument that all States
should have equal rights to secure themselves from injury from
International Space is undoubtedly sound. One of the best ways of
implementing this well established general principle of international
law is to establish effective international controls. This might only
be possible if States were to agree to the establishment of relevant
inter-governmental organisations functioning on their own territories
even though this might mean some relaxation of their absolute and
exclusive sovereignty. In support of this proposition one may turn
to part of another judgment by Chief Justice Marshall, which Lord
Atkin subsequently emphasised &dquo; has illumined the jurisprudence
of the world.&dquo;’
As Chief Justice Marshall stated :
&dquo;
The world being composed of distinct sovereignties possessing
equal rights and equal independence, whose mutual benefit
is promoted by intercourse with each other, and by an inter-
change of those good officers which humanity dictates and its
wants require, all sovereigns have consented to a relaxation
in practice, in cases under certain peculiar circumstances, of
that absolute and complete jurisdiction within their respective
territories which sovereignty confers.&dquo;
Meanwhile, until effective international controls are established
one can only support Professor Cooper’s contention that any future
agreement for inter-governmental regulation of International Space
must preserve national rights of self protection and self defence.
But there are other uses of International Space over which all
sovereign States have independent rights as well. These include the
international system of telecommunications where future develop-
ments appear to indicate the employment of Earth satellites as
aides to radio communications. New postal facilities are envisaged
as well as short and long distance transportation by means of new
forms of propulsion. It is also anticipated that satellites will be
used as aides to air and sea navigation as well as to meteorological
observations and research which, among other things, might render
it possible to control climate artificially. This aspect alone, namely
Schooner Exchange v M’Faddon 7 Cranch 136-7.
6
Chung Chi Cheung v The King (1939) A.C. 160 at p. 168.
7
140
the artificial control of climate, could lead to serious infringement
of rights. One only has to consider some of the problems that arise
from irrigation schemes on Earth to anticipate what rights could be
infringed if, for example, a State attempted to concentrate rainfall
on its own arid zones to the detriment of the customary rainfall
on other States. Reports indicate that claims to infringement of
rights by virtue of cloud seeding processes have already been made
within the Federal System of the United States itself by one State
against another. Other uses include the general exploration of
international Space and extra-terrestrial bodies therein and the
exploitation of their resources.
These different uses of international Space will undoubtedly
influence the legal systems that will have to be evolved for each
user. Within each legal system the independent equal rights of
sovereign States to participate in those uses will be preserved.
Similarly, within each system provision can also be made for defence
use, as is now provided, for example, under the existing systems of
aerial navigation and telecommunications. A clear instance of
defence use existing under rules of international law applying to
navigation within airspace is the example given by Professor Cooper
of the system of air identification zones around the United States and
Canada. The projection of this system to an identification zone in
International Space beyond the national airspace of all sovereign
States would ensure the equal independent right of all sovereign
States to secure themselves against surprise attack from Inter-
national Space beyond the limits of their territory.
What is the Legal Status of Satellites and Future Space Craft?
Professor Cooper points out that the nationality of aircraft was
recognised in the Paris Convention, as it has been in every subsequent
convention regulating air navigation, including the Chicago Con-
vention, 1944. He considers that satellites and future spacecraft
should have the nationality of the launching State.
This conforms with the published opinions of international
lawyers throughout the world. It would have the effects of placing
responsibility for the behaviour of the satellite or spacecraft on the
launching State, which would be obliged to ensure that a satellite or
spacecraft having its nationality conformed with the accepted rules of
international law. Any State operating satellites or spacecraft would
be strictly liable for damage caused on the territory or in the
airspace of another State by such operation. As matters now stand,
the rule of evidence known as res ipsa loquitur would undoubtedly
apply and there would be no limitation on pecuniary liability.
Since there evidently is a consensus that spacecraft has the
nationality of the launching State, the next stage would appear to
be a system of registration similar to the one operating under the
Chicago Convention. Under that system aircraft must be registered
and obtain the nationality of the State of registration. Each con-
141
tracting State undertakes to supply to any contracting State, or to
the International Civil Aviation Organisation, on demand, informa-
tion concerning the registration and ownership of any particular
aircraft registered in that State. Each contracting State undertakes
to adopt measures to ensure that every aircraft carrying its nationality
mark will comply with the rules and regulations relating to naviga-
tion above the Earth’s surface that may be in force. Thus, the State
of registration is responsible for the international good conduct
of its aircraft. It is the responsibility of the State of registration to
ensure that its operating agencies observe the established rules of

navigation. In the event of a breach of those rules by its operating

agencies it must prosecute the offender.
As Professor Cooper has indicated there must come a time when
the rules of navigation in International Space will be regulated
inter-governmentally. Such rules will inevitably provide for un-
restricted freedom of flight in International Space subject to agreed
rules of navigation as is the case under Article 12 of the Chicago Con-
vention in respect of flight through the airspace over the high seas.
Similarly, by further analogy with the Chicago Convention the
rules will in all probability provide that spacecraft, when on a
notified or permitted flight through the airspace of another State,
should be free from any interference from the subjacent State
provided such spacecraft conforms with the agreed rules of naviga-
tion. It will be recalled, in this connection, that the Chicago
Convention provides that aircraft may only carry radio equipment
under licence issued by the appropriate authority in the State of
registration. The use of such radio equipment must be in accordance
with the prescribed regulations of the State in whose airspace the
relevant frequency is used. Further, prior to entering a State’s
control area, a flight plan must be filed with the appropriate control
authority to alert that State of the impending arrival of aircraft.
Provided the aircraft is being operated consistently with the rules of
navigation flowing from the Chicago Convention, which include
certain prohibitions concerning the use of photographic equipment,
Contracting States have undertaken not to interfere with its flight.
One may anticipate that similar rules can be formulated in respect
of spacecraft. In the case of satellites these might require the State
of registration to notify its flight call sign and radio frequency and
also its anticipated orbit and transit points and times well in advance
to the States over which they are scheduled to proceed.
In those circumstances and provided the rules of navigation are
co-ordinated with those promulgated by the International Civil
Aviation Organisation which are adopted by contracting States in
respect of aircraft, there seems to be reason to assume that con-
tracting States would undertake not to interfere directly or indirectly
with the flight of foreign spacecraft through its identification zone or
foreign spacecraft on innocent passage through its national airspace.
142