Si Terrestrial Precedents

It had been proposed, prior to Sputnik, that inter­national relations with respect to the high seas should be precedent for space. To understand why, we will take a quick look at the concept of national sovereignty and how it relates to the high seas.

National sovereignty implies complete legal authority over an area or a population, which is defined by established national boundaries. Nations that bound the oceans have historically extended their sovereignty from their coastlines into the oceans for a defined distance. These areas are known as “territorial waters” and for many years the standard limit was three miles.12 The high seas begin at the point territorial waters end.

Since Roman times, national sovereignty also extended ad coelum, the Latin phrase mean­ing “to the sky.” With the advent of airplanes, this doctrine was applied by international law above the territory of all nations, for as high as airplanes could fly. In all cases, that was in earth’s atmosphere. It continued to be applied to the sky, at least within earth’s atmosphere, even after the launch of the first artificial earth satellites,13 but by custom and acceptance, it has not been applied to flights above the Karman line.

The legal relationships between sovereign nations are governed by international law. As we saw in Chapter 36, international law has devel­oped primarily through the agreement of two or more nations in the form of treaties, which become binding upon ratification and entry into force. In addition, sources of international law derive from “customary international law,” which is based on universally accepted principles and general prac­tice. These principles are often based on concepts of right and wrong, ethics, and responsibility.

All land masses on earth are “owned” by sovereign nations with the exception of Antarc­tica. As we have seen, international law concern­ing that continent is now the subject of treaty. The other 70 percent of the earth, known alter­natively as “international waters” or the “high seas,” since the early 18th century, has univer­sally been accepted by custom as “free seas.” Hugo Grotius14 in 1609 set out in a dissertation called Mare liberum (free seas) the logical prem­ise and argument for a natural right residing in all nations and in all peoples to have free access and use of the seas. The concept of free seas implies the right of passage, the right of navigation, the right to fish, and the right to trade. The seas, being unbounded by man and incapable of pos­session, constitute an equitable, common benefit to the human race.15

Although it was a shock to the average citi­zen, the orbiting of Sputnik came as no surprise to either the scientific or legal community. In the scientific world, in fact, it had been an advertised feature of the International Geophysical Year that an artificial earth satellite would be launched before December 31, 1958, but it had always been assumed that it would be launched by the United States. In the international legal commu­nity, debate and discussion had been occurring for some years on many of the questions that were expected to arise once orbiting satellites were a reality.

There had been significant discussion, for instance, of whether the ad coelum doctrine would or should apply in outer space, but there was no agreement. Persuasive arguments were made for each position. But when Sputnik was launched, all of the sterling legal arguments were suddenly rendered irrelevant. Sputnik was a scientific and technological fact, and there was nothing anyone could do about it. It became clear that law was going to have to follow science.16

There was not one objection by any nation that its national sovereignty was being violated by Sputnik’s transits overhead. There was now an acceptance of a limit to national sovereignty somewhere around the Karman line. But more importantly, the conclusion was compelling that outer space was, indeed, like the high seas. As Grotius had said, “What cannot be possessed is necessarily free for all to use.”

The precedent of international maritime law influencing space law was a good thing. Since nations had been sharing the seas for millennia, there was now some basis to believe that the earth-based international community might, after all, be able to agree on how to use outer space in a peaceful way.

Another terrestrial precedent is aviation law. When airplanes became capable of overflying borders into another country’s airspace, leaders of those countries sat down together and worked out the details that extended maritime law principles to aviation and devised new mles required by the new aviation technology. Examples of these include the Paris Conference of 1910 and the Paris Conven­tion of 1919. (Refer to Chapter 37.) As aircraft became capable of longer range and higher flight, international civil aviation was born to replace, in large part, the maritime passenger industry and to supplement the maritime shipping trade.

The future for international civil aviation was set by the Chicago Convention of 1944. Recognizing the increasing importance to the world of aviation after World War II, contract­ing nations agreed to set up a structure for the adoption of international regulations, standards, and procedures that would govern and control essentially all aspects of international flight.17

But in the years just after the first launches of artificial earth satellites, there were still only two participants in outer space, the United States and the U. S.S. R., and they were still engaged in the “Cold War.” It was obvious that some bilat­eral accommodation between these two powers would have to accompany, if not precede, any effective peaceful solution to the problems of outer space.