XIth INTERNATIONAL ASTRONAUTICAL CONGRESS STOCKHOLM 1960 XI. INTERNATIONALER ASTRONAUTISCHER KONGRESS XIe GONGRES INTERNATIONAL D'ASTRONAUTIQUE PROCEEDINGS VOL.III THIRD COLLOQUIUM ON THE LAW OF OUTER SPACE EDITED BY ANDREW G. HALEY WASHINGTOCII D.C., U.S.A. AND KURT GRöNFORS GOTHENBURG, S\\"EDEX PUBLISHED BY THE ORGANIZING COMMITTEE OF THE CONGRESS SPRINGER-VERLAG BERLIN HEIDELBERG GMBH 1961 Editorial Committee Andrew G. Haley, Mr. Kurt Gronfors, Professor Ake Hjertstrand, M.Sc. Arne Lindberg, Mr. All material in this volume is protected by copyright. Permission for reproduction may be granted only on written application to the authors ISBN 978-3-662-37067-4 ISBN 978-3-662-37770-3 (eBook) DOI 10.1007/978-3-662-37770-3 AB AETATRYCK, Ahlen & Akerlunds Tryckerier, Stockholm 1961 IV Contents Page Opening words Session 1. International Control of Outer Space Je nks, C. W.: The International Control of Outer Space (Introductory Lecture) 3 Discussion. Contributions by: Rinck, G. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Smirnoff, M. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Safavi, H. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Fasan, E. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Gunnarsen, L. A. 19 fenks, C. W.: Concluding remarks of Session 1 19 Papers, Session 1. Cooper, f. C.: International Control of Outer Space. Some Preliminary Problems 21 Hyman, W. A.: Sovereignty over Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Haley, A. G.: Survey of Legal Opinion on Extraterrestrial Jurisdiction . . . . . . . . . . . . 37 Galloway, E.: World Security and the Peaceful Uses of Outer Space . . . . . . . . . . . . . . 93 Martin, T. E.: International Space Law and Outer Space . . . . . . . . . . . . . . . . . . . . . . . . 102 Kopal, V.: Two Problems of Outer Space Control: The Delimitation of Outer Space, and The Legal Ground for Outer Space Flights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Gross, F.: Thoughts on the Importance and Task of Space Law . . . . . . . . . . . . . . . . . . 113 Smirnoff, M.: The Today Real Possibilities for the Conclusion of an International Convention on Outer Space ................................................ 116 Faria, f. E.: Draft to an International Covenant for Outer Space. The Treaty of Ant arctica as a Prototype . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Michael, D. N.: A Research Approach to the Impacts on Society of Peaceful Space Activities (Abstract) ...................................................... 128 Session 2. Damage to Third Parties on the Surface Caused by Space Vehicles Pepin, E.: Damage to Third Parties on the Surface Caused by Space Vehicles (Intro- ductory Lecture) ................................. .... ..................... 131 Discussion. Contributions by: Cooper, J. C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Verplaetse, J. G ................................. 134 Beresford, S. M. . .............. .... ............. 135 von Rauchhaupt, F. W. . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Npin, E.: Concluding Remarks of Session 2 .................................. 137 Closing words . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 7 V Papers, Session 2. Cooper, f. C.: Memorandum of Suggestions for an International Convention on Third Party Damage Caused by Space Vehicles ......... ............................. 141 Verplaetse, J. G.: Conflicts of Air-and Outer Space Law ........................ 145 Beresford, S. M.: Principles of Spacecraft Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 Appendix: Statutes of the International Institute of Space Law . . . . . . . . . . . . . . . . . . 159 List of Authors and Contributors Numbers refer to page Beresford, Spencer M. ( 135, 152) Special Counsel, Committee on Science and Astronautics, House of Representatives United States Congress, Washington, D.C., USA Cooper,JohnCobb (21, 133, 141) L.L., M., L.L.D., (Hon.) Professor Emeritus International Air Law, Me Gill University, Montreal, Canada 1, Armour Road, Princeton, N.J., USA Faria, J. Escobar ( 122) L.L.B., Government Lawyer for the State of Sao Paulo, Brazil, Member Air Law Division and Member Space Sciences Division, The Santos Dumont Foundation, Sao Paulo, Brazil Rua General Mena Barreto, 527, Sao Paulo, Brazil F asan, Ernst ( 18) Dr., Rechtsanwalt Hauptplatz 11, Neunkirchen, Austria Galloway, Eilene (93) Special Consultant, Committee on Aeronauti cal and Space Sciences United States Senate, Washington, D.C., USA Gross, Franz ( 113) Dr., Rechtsanwalt Pestalozzistrasse 1, Graz, Austria Gronfors, Kurt ( 1, 137) Professor of Law, Gothenburg's School of Eco nomics and Business Administration Handelshogskolan, Vasagatan 3, Gothenburg, Sweden Gunnarsen, Leif ( 19) Landsretssagforer, Sekretrer i Undervisnings ministeriet, Kobenhavn Ingolfs Alle 24 B, Copenhagen S, Denmark Haley, Andrew G. (37) General Counsel, International Astronautical Federation General Counsel American Rocket Society 1735 DeSales Street, N.W., Washington 6, D.C., USA VI Hyman, William A. (26) Attorney at Law, A.B., L.L.B., D.H.L. 111 Fulton Street, New York 38, N.Y., USA Jenks, C. Wilfred (3, 19) L.L.D., Associate of the Institute of Inter national Law International Labour Office, Geneva, Switzer land Kopal, Vladimir ( 108) Dr., Institute of State and Law, Czechoslovak Academy of Sciences, Praha, Czechoslovakia Praha 1, Narodni 18, Czechoslovakia Martin, Thos. E. ( 102) United States Senator, Member of the Com mittee on Aeronautical and Space Sciences United States Senate, Washington, D.C., USA Michael, Domld N. ( 128) Dr., Member Senior Staff Brookings Institution 6012, Onondaga Rd., Washington 16, D.C., USA Pepin, Eugene ( 131, 137) Dr., Former Director of the Institute of Air and Space Law, Me Gill University, Montreal, Canada 51, Rue de Levis, Paris 17 e, France von Rauchhaupt, Friedrich W. ( 136) Professor, Dr. P!Ock 45-49, Heidelberg, Germany Rinck, Gerd ( 16) Professor, Dr. Herzberger Landstrasse 26, Gottingen, Ger many Safavi, Hassan ( 17) Dr., Legal Adviser of Civil Aviation, Iran 25, Ave. Yekta Zafranieh, Tadrish, Teheran, Iran Smirnoff, Michel ( 16, 116) Dr., Chairman International Institute of Space Law, Member Air Transport Commission of International Chamber of Commerce Zahumska br. 37/III, Belgrade, Yugoslavia Verplaetse, Julian G. ( 134, 145) Dr., S.J.D. Harward Heirenthoek, Landegem, Belgium A selection of papers of the other sessions of the congress are to be found in the following publications: Main Sessions. Proceedings Vol. I, Springer-Verlag, Vienna. Small Sounding Rockets Symposium. Proceedings Vol. II, Springer-Verlag, Vienna. Space Medical Symposium and Astrodynamics Colloquium - in forthcoming issues of Astronautik (Journal of the Swedish Interplanetary Society, Stockholm). VII Third Colloquium on the Law of Outer Space Opening Words Kurt Gronfors Ladies and Gentlemen: As Chairman of the Swedish Committee organizing this Colloquium I have the great honour and pleasure of greeting you all most heartily welcome. Indeed, I am very happy to see present in this room at the same time so many distinguished specialists on air law and space law. Our organization is, as you all know, a fully nonpolitical scientific organization, and this meeting is the platform for a free scientific interchange of ideas between lawyers. The fact that so many famous scholars have joined the meeting is the best guarantee for its success. We have chosen to concentrate on two topics rather than to start a general discus- sion on space law. The two subject-matters we will deal with today are: 1. International Control of Outer Space. 2. Damage toT hird Parties on the Surface Caused by Space Vehicles. You can not really describe those two topics as problems of tomorrow. They are not even new today. In the light of space activities already performed they should by now have been solved by the lawyers. Nevertheless, they are still open to discus sion and it seems to be an urgent task to reach a fair solution. It is the sincere wish of the Committee responsible for the arrangements of this meeting that the following discussions really might contribute to the clarification of some important points on space law. With these words, Ladies and Gentlemen, I declare the Third Colloquium on the Law of Outer Space opened. The Colloquium elected with acclamation Professor Gri:infors as its Chairman. Chairman: I thank you very much for the honour. I will try to fulfil my duties to the best of my abilities. First I give the floor to Dr. Jenks for his Introductory lecture concerning Interna tional Control of Outer Space. Xlth INTERNATIONAL AsTRONAUTICAL CoNGRESS SToCKHOLM xg6o The International Control of Outer Space Introductory Lecture C. Wilfred Jenks My task this morning is to pose questions rather than to answer them. I shall pose them from the angle of one who cannot claim any technical knowledge of astro nautics, but who approaches the problem of the international control of outer space as a new and increasingly vital element in the general problem of effective world organization to secure the freedom and welfare of the human race by sustained economic and social progress on the basis of universal law. This is our assignment, not for this morning alone, but for a generation or more to come. I do not intend on this occasion to enlarge on the fundamental astronomical and other scientific facts, the underlying political issues, or the more hypothetical legal problems. My views on these matters [ 1 ], and the views upon them which many of you have expressed from time to time, are on record elsewhere. We should, I submit, endeavour to address ourselves this morning to a more immediate issue, namely, how can we break the deadlock which at present bars the way to effective inter national control of space? There is now an abundance of literature, much of it somewhat speculative, con cerning space law [2], and in Jessup and Taubenfeld's Controls for Outer Space [3] we have a thoroughly scholarly examination of the whole problem by an inter national lawyer of the first rank. An increasing number of responsible bodies, scientific, legal, and official, national and international, have considered or are considering the matter. The initiative has come, as is meet, from astronauts, scientists and technologists. The International Astronautical Federation has pioneered the whole venture and, in addition to sponsoring the Space Law Colloquia of which this is the third, established yesterday an International Institute of Space Law. We would, I am confident, all wish to give expression this morning to our keen satisfaction at this important departure and our ardent hope that the Institute will make a major contribution to future developments. It is designed to be an objective and scientific body; in order that it may fulfil its purpose it is essential that it should be fully representative and that all its work should be most carefully prepared in the closest consultation with leading scientists and technologists; we all trust that it will soon become fully Tepresentative in composition and character. The International Council of Scientific Unions has throughout played a leading part, has to its credit the positive practical achievement of the substantial measure of ·international co-operation in space exploration achieved during the Interna tional Geophysical Year, and continues, through its Committee on Space Research (COSPAR) to stimulate and co-ordinate scientific co-operation in the whole field [ 4]. International lawyers have not been slow to explore the challenge which the new scientific and technological developments present for the law, but their collec tive thinking on the subject is necessarily in a tentative stage of development. 3 C. WILFRED jENKS The International Law Association, which has for many years had an Air Law Committee, now has a special Sub-Committee on Air Sovereignty and the Legal Status of Outer Space; last week at Hamburg the Forty-Ninth Conference of the Association affirmed the principle that outer space may not be subject to the sovereignty or other exclusive rights of any State [ 5]. The Institute of International Law, which is properly a cautious body, now has a Commission on Space Law of which I have the honour to be chairman and reporter [ 6]. This Commission has not yet reached any conclusions. While the scientists are playing, and the lawyers are preparing themselves to play, their respective parts, the dominating fact in the present situation is the increasing preoccupation with the problem of statesmen, governments, and official interna tional organizations. Of this there have been many indications. During the recent disarmament negotiations both sides have accepted, subject to varying conditions which have not yet been reconciled, the general principle that outer space should be used exclusively for peaceful purposes [7], but no clear de finition of what is meant by peaceful purposes has yet been agreed. The General Assembly of the United Nations established in 1958 an Ad Hoc Committee on the Peaceful Uses of Outer Space. While the Committee was handi capped by the refusal of the USSR and certain other States to take part on the basis of the composition of the Committee decided by the General Assembly, it adopted a most useful report [8] which, in addition to giving a convenient survey of the potential scope of space activities, the support facilities necessary for the effective conduct of space activities, and the existing arrangements for interna tional co-operation, contains an abundance of practical suggestions concerning matters which should be further pursued. The report distinguishes between matters in respect of which international agreements providing for an "open and orderly conduct of space activities" can "form the basis of an international routine" without continuing co-operative action and matters in respect of which "there is need for active co-operative endeavours in which groups of nations assist each other in carrying out various phases of space activities". It envisages international agree ments dealing with such matters as the use of radio frequencies, the registration of orbital elements, the termination of radiotransmission at the end of the satellite's useful life, the removal of spent satellites, the re-entry and recovery of space vehic les, the return of recovered equipment, identification of origin, and measures to minimize the adverse effects of possible biological, radiological and chemical conta mination. Among the measures of international co-operation in joint projects contemplated by the report are simultaneous sounding rocket launchings, the inter national use of launching ranges, co-operation in the instrumentation of satellites and deep space probes, co-operation in tracking, telemetering and data processing, co-operation in the exchange and interpretation of data, and international ar rangements to permit of a maximum use of communications and meteorological satellites. The Committee grouped as legal problems susceptible of priority treat ment the questions of freedom of outer space for exploration and use, liability for injury or damage caused by space vehicles, the allocation of radio frequencies, the avoidance of interference between space vehicles and aircraft, the identification and registration of space vehicles and co-ordination of launchings and arrange ments governing the re-entry and landing of space vehicles; it classed as less urgent the question of determining where outer space begins, the provision of safeguards against contamination of outer space or from outer space, questions ·relating to the exploration of celestial bodies, and the avoidance of interference among space vehicles. While these proposals need wider support to make them practicable, they represent an invaluable point of departure. 4 The International Control of Outer Space In 1959 the General Assembly established a new Committee on the Peaceful Uses of Outer Space, constituted on a broader basis, with a mandate to review the area of international co-operation in the exploration and exploitation of outer space for peaceful purposes, to study practical and feasible means for giving effect to programmes on the peaceful uses of outer space which could appropriately be undertaken under United Nations auspices, and to study the nature of the legal problems which may arise from the exploitation of outer space [9]. It has not yet been possible, however, to hold a meeting of this Committee with the participation of all its members. The General Assembly has also approved in principle the convocation under the auspices of the United Nations, probably in 1961, of an international scientific conference for the exchange of experience in the peaceful uses of outer space, analogous in general character to the scientific conferences which have played so important a part in promoting the peaceful uses of atomic energy [ 10]. The de tailed arrangements for the conference are still, however, in suspense. The two specialized agencies of the United Nations most directly concerned with immediate developments, namely the International Telecommunication Union and the World Meteorological Organization, have already taken significant action. The International Telecommunication Union has allocated frequency bands for remote control of space vehicles; it has under study future needs for these purposes, the identification of radio-emissions from space vehicles, codes for the transmission of information from space vehicles, methods of providing for the cessation of radio emissions from space vehicles, and the use of space vehicle relays to extend ter restrial telecommunication facilities; and it has made arrangements for an Extra ordinary Administrative Radio Conference to be held if timely in 1963 to consider certain of these matters further [ 11]. The World Meteorological Organization is playing an active part in advising on the use of artificial satellites for meteorologi cal purposes and has envisaged that its future responsibilities might include partici pation in the planning of space vehicle tracking stations for meteorological pur poses and in the design of the necessary computational practices and technique for the reduction of the data to amenable forms for practical use [ 12]. The International Civil Aviation Organization is vitally concerned with ensuring that the rules of the road to and from space do not conflict with the rules of the road in the air; this may imply that they should be framed and administered by the same international body; it certainly requires co-ordination on an international scale between space launching and aviation authorities comparable to t..hat which it is believed already exists on a national basis in certain States where the matter has become of practica'l importance. The Administrative Committee on Co-ordination, which consists of the Secre tary-General of the United Nations and the executive heads of all the specialized agencies, has, at the request of the Economic and Social Council, made a preli minary examination of the steps desirable to promote co-ordination among all of the organizations of the United Nations family which are or may be concerned in the peaceful uses of outer space, and has the whole matter under continuing review [ 13] 0 This widespread preoccupation with the matter is encouraging, but it is discon certing that few positive steps have yet been taken towards the establishment of effective arrangements for the international control of outer space. This is partly because one basic condition of the establishment of an effective international regime has not yet been fulfilled, partly because four major initial dilemmas which must be confronted before substantial progress can be made have not yet been resolved. Let us this morning attempt to visualize clearly the roadblocks which lie 5