Delbert R. Terrill, Jr.

“ Considerations of international law as such ought not now to occupy a major place in the determination of US policies affecting activities by nations in outer space. Existing legal rules do not necessarily require or forbid any specific activities of the type that we are likely to contemplate in outer space; the law of outer space has still to be evolved; the United States should determine what space policies and activities are desirable on other grounds before asking whether they violate old legal rules or require new ones. ”

“ He contended that so long as other nations did not raise objection to US programs and no other nation’s program presented a threat to the United States, any international convention would hamper Air Force missions and research. Finally, he advised:
In this formative stage, we believe the practice of nations will create a more realistic precedent for future conduct in outer space than formulation at this time of international rules which could not possibly be grounded in actual practices and experience, but only on the abstract theories of each country’s statesmen and jurists. ”

“ By tying the US space program to his freedom of space policy, Eisenhower had hoped to impress upon the world the peaceful intent of the US. [44] However, whatever propaganda advantage the United States had gained by such peaceful remonstrations was overshadowed when the USSR was “first in space.” Interestingly, the launch of Sputnik, while sharpening the focus of the heretofore essentially academic discussion of sovereignty in outer space, did not result in any immediate international convention. ”

“ Even though the Air Force had succeeded in keeping outer space law questions off the ICAO agenda and in general had effectively stalled any resolution of outer space law issues, by mid-1958 “the magnitude and variety of these [space law] studies moved several well-known American jurists to remark that the law of space, instead of lagging behind the astronauts as some lawyers fear, is threatening to outfly the attraction of the earth’s gravity.” ”

“ In response to the early efforts by theorists and academicians to conclude an international outer space convention, the Air Force proposed-and the United States adopted-an ad hoc approach to the creation of international outer space law, reasoning that this approach would allow practice and technology to drive the evolution of the law. ”

“ While Air Force lawyers had initially encouraged the ad hoc approach, by 1961 the judge advocate general himself expressed discomfort with the reactive posture undertaken by the Air Force. Consequently, he recommended that the Air Force seize the leadership and take a more active role in the development of outer space law, as the Air Force had done in the field of aerospace medicine. The Air Force never followed this advice. ”

“ Upon returning to the United States from Geneva, President Eisenhower announced officially on 29 July 1955 that the here-to-fore undisclosed US IGY satellite project was to be powered by nonmilitary boosters that had not yet been built. [43] In September 1955 the Navy’s proposal to manage the “civilian” IGY booster program was approved. Neither President Eisenhower nor his advisers appear to have appreciated how much their idealistic insistence on developing nonmilitary boosters would delay the American satellite project and what the impact of that delay would be. ”

“ Major Neumann concluded that “an international convention seems to be necessary at an early stage of mankind’s penetration and exploration of outer space, in order to prevent undesirable interferences which end in loss of human lives and valuable material.” [34] Contrary to the Air Force position at the ACC, Major Neumann concluded that Cooper’s proposal had merit and advised that, since the USSR had projects planned for outer space, it might be possible to conclude an international agreement with the USSR establishing the legal status of outer space. ”

“ On the other hand, it must be understood that international outer space law generally evolved from the practice of nations and that the operational forces of the Air Force were and remain the leading US military service impacting outer space matters. ”

“ Because the USSR warhead devices were larger and heavier, they required the concomitant development of rockets with greater thrust than did the US devices. While the United States was ahead in being able to deliver a hydrogen warhead more precisely anywhere on earth, the USSR had rockets with greater thrust and throw weights that were advantageous for launching objects into outer space. ”

“ The ACC Legal Division further concluded that consideration of the issues by an international body was premature and that the United States should consider the important policy problems within its own government prior to endorsing such international action. Finally, the division recommended that the US object to even the study of the matter by an international body as being premature. These recommendations did not sway Cooper and he pressed his position to the point that, in an April press release, the ICAO announced the need for an international agreement on outer space sovereignty. ”

“ When a US position is determined should there be an international convention? [12]
Kinsey noted that in addition to Cooper, Oscar Schachter, C. Wilfred Jenks, and Andrew J. Haley (director and general counsel of the American Rocket Society) [13] had proposed the above questions given that Cooper and others had placed the general subject of outer space sovereignty on the agenda for the Tenth Session of the World Assembly of the ICAO to be held in Caracas, Venezuela, in June 1956. ”

“ The panel had created a blueprint for Eisenhower as to how the US should proceed regarding resolution of the freedom of passage issue.
Given a lack of intelligence regarding the Union of Soviet Socialist Republics (USSR) and given that the United States was not able to implement the reconnaissance satellite system envisioned by the TCP, President Eisenhower initiated Project Genetrix in January 1956. This space “research” project consisted of the Air Force launching 516 Skyhook “weather” balloons from locations in Europe. [19] These balloons carried automatic cameras. ”

“ Howard again forcefully represented the Air Force point of view that efforts to develop outer space law should not be adopted before any actual operations that such laws would be intended to govern had begun. Hereiterated that the main issues regarding outer space involved “national defense and military type questions.”
Howard asserted that the ICAO was an inappropriate vehicle for discussing the issue since the Soviets were not members of the ICAO. He argued that it would be dangerous for the free world to adopt restrictionson its own space activities without the Eastern bloc’s participation. ”

“ The United States, among others, opposed their declaration of sovereignty. The position of this Bogota Declaration has yet to become accepted international law by convention, custom, or practice. Nevertheless, the principle espoused by the declaration is still being debated. ”

“ Howard, who later would become the first general counsel for the Federal Aviation Administration, indicated that it was problematic to have the ICAO undertake discussion of the sovereignty issue when the USSR-the only state to have launched a satellite-was not a member of the body. [46] The division approved a letter to David stating:
The United States believes that considerably more technical development and experience are needed before any international action on the problem you have raised should be undertaken. ”

“ The Soviets launched Sputnik I on 4 October 1957 and Sputnik II in November. During the several months before the launchings, “there was furious activity on the Air Staff on space matters.” [37] The Air Staff was preparing for an Air Force space launch of a “civilian” satellite at Cape Canaveral. [38] During this time, the legal ramifications of the launch were being studied, particularly the issue of whether an orbit over another country would violate its sovereignty. ”

“ It has been felt that the soundest way to progress in the extremely complex field of the law is by means of specific decisions on specific questions presented by specific fact situation ...Moreover, there are very great risks in attempting to transmute a body of law based upon one determined set of facts into a body of law with respect to which the basic facts have not been determined. ”

“ Since the US satellite programs were in large part funded by the military, Leigh noted that without his revision Becker’s language would create “an almost irrebuttable presumption” that the projects were being carried out for “weapons purposes.” Leigh opposed using the law of the high seas as an analogy for developing the law of outer space. Becker included Hancock’s IGY proposal and removed the “designed for weapons purposes” language from the draft proclamation. ”

“ On 7 February 1956, Secretary of State John Foster Dulles responded to the Soviet protests by stating that, in the interest of “decent friendly relations,” the US would “try” to stop the release of the “weather” balloons. While admitting that some of the weather balloons carried photographic equipment, the United States asserted that the equipment was only for taking pictures of high-altitude cloud formations. [22] The Soviets responded that they had developed film from the balloons containing pictures of Turkish airfields. ”

“ Later that month, during a disarmament debate, Henry Cabot Lodge, US ambassador to the United Nations (UN) , reconfirmed such US willingness. Lodge noted that several nations were proceeding to launch objects into outer space and that some form of international control needed to be established. ”

“ If they did not resolve the sovereignty issue, nations would likely make territorial claims based on the landing of scientific devices on bodies in outer space. [10]
Eisenhower, a Nuclear Pearl Harbor, and Air Force BalloonsPrior to Professor Cooper’s treatise, many elements within the United States, including the US Army Air Forces (AAF) , had been interested in outer space and its potential exploitation for military or intelligence purposes. ”

“ The IGY was a scientific year when experts from 67 nations agreed to observe the earth over its whole surface, simultaneously, and with precise instruments designed to the same standards so that the changing phenomena enveloping the earth could be caught and described in their full global sense. ”

“ The value of actual practice is especially important so long as the United States has the capability of leading the way in establishing the precedent. [24]
Maj Hamilton DeSaussure and Maj Gen Albert M. Kuhfeld. DeSaussure prepared key position papers for the Air Force JAG office in support of the Air Force’s position in the early debates about outer space. ”

“ While in the Air Force Reserve, he previously served at the Department of Legal Medicine, Armed Forces Institute of Pathology, and the Office of the Surgeon General of the Air Force. He is a graduate of the Air War College (outstanding graduate) , the Armed Forces Staff College, and the Air Force Squadron Officer School. In February 1994 and July 1997, Colonel Terrill attended the Sixth and Seventh Biennial Conferences on the Law Relating to National Security Activities in Outer Space. ”

“ Hall, “Origins,” 6, 19-22 ↑ Ibid., 21. ↑ “Open skies” was part of President Eisenhower's space-for-peace policy. Open skies contemplated the sharing of information regarding the exploration of outer space, the setting of limits on sovereignty regarding outer space, and the inspection of space program facilities. ”

“ Air Staff Representation on the Legal Division, ACC, 7 May 1952. ↑ John C. Cooper to Delbert W. Rentzel, chairman, Civil Aeronautics Board, 16 April 1952. ↑ Rothschild served concurrently as under secretary of commerce. ↑ Ronald C. Kinsey, secretary, Legal Division, memorandum, subject: Treatment of the Problem of Sovereignty and Associated Legal Privileges and Rights in Regard to the Use Of Outer Space by Nations, 7 March 1956 (hereafter Kinsey memo) . ”

“ AcknowledgementI would like to thank the individuals who assisted me in the research and preparation of this monograph. Will H. Carroll, Prof Harry H. Almond Jr., and Brig Gen Martin Menter, USAF, Retired, all provided invaluable interviews and documents. Robbie Profitt of the Federal Aviation Administration assisted me in locating crucial Air Coordinating Committee papers. Mrs. ”