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CONTIGUOUS ZONE THEORY OF JOHN COBB COOPER

John Cobb Cooper presents a unique approach to the problem of air space versus outer space in that he would provide not two but three zones. The three zones suggested by Cooper are:

1) Territorial Space—this would embrace the air space to the von Karman line and in which the subjacent state has complete and exclusive control.

2) Contiguous Space-that area above the von Karman line to an altitude of 600 miles, in which the subjacent state would be sovereign, subject to the right of ascending and descending transit for non-military flight.

3) Outer space-above the Contiguous Zone in which no sovereign rights exists for the subjacent state and in which there is free passage to all craft.14

SPACE OVER THE HIGH SEAS

Our discussion thus far has concerned flights over national territories and an attempt to determine whether such flights may be said to have occurred in a free zone of outer space or in violation of the recognized right of national sovereignty. Let us briefly consider the rules governing flight over the high seas. John Cobb Cooper has summed up the opinion of all authorities when he said

Space over the high seas is free from national sovereignty claims at any heights. But this may not preclude national action in such space when required for self-preservation by an adjacent state."

FUNCTIONAL USE SCHOOL

PRESENT POSITION OF THE UNITED STATES

We have seen that there are some who hold that the sovereign rights of the subjacent state extend ad infinitum into space; others who establish a dividing line between national air space and outer space of an, as yet, undefined legal status. To these schools must be added a third which may be called the Functional Use School. This school would create an easement or right of way over subjacent states for certain types of space vehicles. This easement would be established on a case by case basis.

The method of establishing this easement divides the Functional Use School into two groups. Myres S. McDougal and Leon Lipson suggest a registration and inspection system in which

each state about to launch a satellite could register its intent to so do with an international agency, filing a flight plan and a description of certain characteristics of the satellite such as load, weight and size. This could be combined with willingness to submit to international inspection, to assure that the payload

conforms to the description filed.45 Having done this, it is to be assumed that an easement for peaceful purposes exists over and through the space of subjacent states.

Leopold and Scafuri would establish the easement by utilizing the Orbital Parameters of the Cosmic Flight. Thus, state the authors,

the sovereign rights of exclusion heretofore confirmed in surface states with respect to aircraft and conven14. id. at 98. See also Hearings before House Select Committee on

Astronautics and Space Exploration, 85th Cong., 2d Sess., 1335

(1952). 15. McDougal & Lipson, Perspectives for a Law of Outer Space, 52

Am. J. Intl L. 407, 430, in Symposium 410, 430.

The United States has adopted a wait and see policy. This country feels that each flight produces a precedent upon which a body of customary law is being built. While quite willing to meet specific issues on a case by case basis, the United States does not feel that the time is ripe for a determination of general principles. This position was straight forwardly asserted by Loftus Becker, the Legal Advisor to the State Department when he wrote,

Basically, the position of the United States Government is that the law of space should be based upon the facts of space, and that there is much more we have to learn before we shall be in a position to say what shall be the general legal principles applicable to activities in that region. (Emphasis supplied.)

SIGNIFICANCE OF THE INTERNATIONAL

GEOPHYSICAL YEAR

The role of the I.G.Y. in the formation of international law for space cannot be ignored. The first satellites were placed in orbit during that 18 month period and states refrained from protesting overflights of their territory because such flights, made pursuant to the high ideals of 16. Leopold, Scafuri, Hoeppner

Lawrence, Jurisdictional Characterization of Cosmic Flight by Orbital Parameters Techno-Legal Evaluations and Recommendations, Paper presented at the American Rocket Society Space Flight Report to the National Session,

10 October 1961, p. 9. 17. Cooper, Space Above the Seas, JAG J., Feb 1959, p. 32. 18. Becker, United States Foreign Policy and the Development of

Law for Outer Space, JAG J., Feb 1959, p. 4.

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Treating these in inverse order, let us examine that undertaking, were for the common interest

first the status of outer space. Almost all legal of mankind. Based on this experience the Legal Advisor of the State Department was prompted authorities who have written on the subject

have declared that outer space must be free. to observe.

A favorite discourse is comparing outer space It is not too bold to suggest that we are here viewing

to the high seas and citing Grotius' "mare libthe initial stage of development of a principle of cus

erum”. Expanding further on this point John tomary international law permitting the orbiting of

Cobb Cooper cites Mr. Justice Storey's opinion satellites of this nature.18

in the case of “The Marianna Flora”, This position was also adopted by the U.N. Ad

Upon the ocean, then, in time of peace, all possess Hoc Committee on the Peaceful Uses of Outer

an entire equality. It is the common highway of Space. Referring exclusively to the peaceful

all, appropriated to the use of all; and no one can uses of outer space the Committee reported,

vindicate to himself a superior prerogative there. There may have been initiated the recognition or

Every ship sails there with the unquestionable right establishment of a generally accepted rule to the

of pursuing her own lawful business without intereffect that, in principle outer space is, on conditions

ruption; but whatever may be that business, she is of equality, freely available for exploration and use

bound to pursue it in such a manner as not to violate by all in accordance with existing or future interna

the rights of others.21 tional law or agreements.20

The Soviet Year Book of International Law THE STATUS OF OUTER SPACE AND CELESTIAL agrees with this point of view. In an article BODIES

with the politically inspired title, "American

Plans for the Use of Outer Space with AggresPHYSICAL DESCRIPTION

sive Purposes and the Security of States", the The earth is one of nine planets orbiting

author cites with favor a General Assembly about a minor star, the sun. The sun itself is

resolution (1721-Dec. 20, 1961) which proone of some hundred billion stars comprising

claims in part that a galaxy known as the Milky Way. The sun is

outer space and celestial bodies are open to all states in orbit around a central point in the galaxy.

for exploration and use in accordance with internaThis orbit takes two-hundred million years to tional law and are not liable to appropriation by any complete. Astronomers believe they see more

state.” than two hundred million other galaxies in the

It would seem, therefore, that outer space, wherrange of a 200-inch telescope.

ever it begins, enjoys a status similar to that of Returning to the earth itself for a moment,

the high seas. our atmosphere is divided into four or five lay

Our second topic concerns artificial celestial ers. That layer closest the earth is called the

bodies by which is meant, primarily, the sateltroposphere, followed by the stratosphere, above

lites launched into space. Again there is uniwhich is the ionosphere, which is divided by

formity of agreement regarding their legal some authorities into the mesosphere and ther status. The General Assembly of the United mosphere. Finally there is the exosphere which

Nations expressed the rule in its Resolution gradually merges into interplanetary space. number 1962 of December 24th, 1963. ParaRegions beyond the atmosphere have been given

graph 7 of that Resolution states: designation by astronomers-solar space refers

The State on whose registry an object launched into to the area occupied by the solar system; ga

outer space is carried shall retain jurisdiction and lactic space includes solar space and the area control over such object, and any personnel thereon, beyond but occupied by our galaxy and finally, while in outer space. Ownership of objects launched extragalactic space refers to all else beyond the into outer space, and of their component parts is not

affected by their passage through outer space or by

their return to the earth. Such objects or component LEGAL STATUS OF OUTER SPACE

parts found beyond the limits of the State of registry It can readily be seen that space covers enor shall be returned to that State, which shall furnish mous, practically incomprehensible, distances. identifying data upon request prior to return. What then is the legal status of this vast area? The final topic is the legal status of natural To keep this discussion within a simple frame celestial bodies. Many writers join their diswork, a three fold division of subject matter is cussion of outer space and natural celestial proposed, viz., (1) Natural Celestial Bodies (2) bodies as if there is no distinction between the Artificial Celestial Bodies and (3) Outer Space. 21. Fundamental Questions of Outer Space Law, Lecture by John

Cobb Cooper, Leiden University, The Netherlands, 12 Oct 1960, 20. Report to the United Nations General Assembly, 14th Sess., N.Y.,

in Symposium 764, 767. 1959, U.N. Doc. A/4141, 14 Jul 1959, p. 23, in Symposium 1268.

22. Zhukov, Soviet Year-Book of International Law 203 (1961).

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19. Id, at 29.

two. Obviously, there is a distinction. A ce They will refrain from claiming sovereignty or jurislestial body is something we can see and touch, diction over the Moon, (2) They will consistently claim unlike the voids of outer space. Celestial the operating rights and benefits that would be exbodies for the most part are different from

pected to result from a successful claim to sovereignty the high seas which are incapable of appro

or jurisdiction. Thus they could reap maximum politpriation by any single state. Celestial bodies

ical and practical benefits.* are physically capable of appropriation by a

OTHER LEGAL PROBLEMS OF SPACE state. Therefore the question to be decided is, may a state appropriate and claim, in whole or

RESPONSIBILITY FOR THE EFFECTS CAUSED BY THE in part, a natural celestial body? Three legal

RETURN OF SPACE CRAFT TO EARTH terms should engage our attention at this point. Res Nullius—a thing which has no owner, the first

The United Nations has adopted a resolution possessor of which becomes the owner.

which imposes absolute liability on a launching Res Communes—those things which, though a sepa

State for any damage caused to a foreign State. rate share of them can be enjoyed and used by every

The resolution states in part one, cannot be exclusively and wholly appropriated, Each State which launches. an object into outer such appropriation being prohibited by law.

space ... is internationally liable for damage to a Res Extra Commercium-a thing incapable by its

foreign state or to its natural or juridical persons by nature of appropriation on behalf of any particular such object or its component parts on the earth, in sovereignty.

air space, or in outer space.” If the natural celestial bodies are considered

ALLOCATION OF TRANSMISSION FREQUENCIES as res nullius then it follows that the first posses

Almost all the authorities in the field of space sor may appropriate them to his own use. Such a view is, however, almost universally rejected.

law agree on the urgency of establishing an inMost writers use the term res communes or res

ternational agreement on the use of radio fre

quencies. It must be recognized that the band extra commercium or both to describe the legal

range is very limited and in the absence of an status of outer space. The major distinction

agreement mankind's advances into space may between the two would seem to be that if celes

become slowed by a babble of incomprehensible tial bodies are considered res extra commercium no state, organization, or person may claim

sounds from space. ownership because by nature the object is beyond

TEST BAN TREATY OF 1963 appropriation. If on the other hand, the bodies

While the discussion so far has indicated many are considered res communes, although no par

of the problems of space law and very few, if ticular state could appropriate them, it would

any, solutions as we draw to a close, we can be possible for an international agency i.e., the

point to one concrete solution to an urgent probUnited Nations, to appropriate the celestial

lem. I refer, of course, to the Test Ban Treaty bodies for the use of all. To date no claim has

signed on 5 August 1963. Article I of this been made to any celestial body and in fact most

treaty provides that states have acknowledged that celestial bodies

each of the Parties to this Treaty undertakes to proare not subject to national appropriation. Thus

hibit, to prevent, and not to carry out any nuclear the General Assembly was able to lay down the

weapon test explosion or any other nuclear explosion following principles in paragraphs 2 and 3 of

at any place under its jurisdiction or control in the Resolution 1962:

atmosphere, beyond its limits, including outer space; 2. Outer Space and celestial bodies are free for ex or underwater, including territorial waters or high ploration and use by all States on a basis of equality and in accordance with international law.

Several authorities have suggested that this 3. Outer space and celestial bodies are not subject to

treaty was made of necessity to prevent the connational appropriation by claim of sovereignty, by

tamination of the earth with nuclear fallout. means of use or occupation, or by any other means.

While this argument cannot be denied, it is Such self-denials on the part of States, while

hoped that the same feeling of necessity will soon encouraging, may not, on second glance be as

bring agreements in other areas. rosy as one would initially believe. Professor

23. Lipson, International Political Implications of Activities in Outer Leon Lipson of Yale sounds the following

Space, Report R-362-R.C., The Rand Corp., Santa Monica, Calif.;

Soviet Space Programs: Organization, Plans, Goals, and Interwarning:

national Implications, Staff of Senate Committee on Aeronautical It seems probable that Soviet diplomatic and legal

and Space Sciences, 87th Cong., 2d Sess. 206 (1962).

24. General Assembly Resolution 1962 (24 Dec 1963). policy will be governed by two characteristics (1)

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HUSBAND AND WIFE PRIVILEGE

RULES OF EVIDENCE

LIEUTENANT COLONEL CHARLES B. SEVIER, USMC*

When may a wife testify against her husband? Can she be compelled to do so? What is the effect of erroneously compelling the wife to testify? Does the offense for which the husband is on trial make any difference? If she does testify, are there any limits to what she may divulge? Lieutenant Colonel Sevier discusses these questions and many others in developing the marital privilege and privileged communications rules. This article contains a discussion of the leading cases in these areas of the law of evidence.

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the injuries which he observed and the treatment PART -THE HUSBAND-WIFE PRIVILEGE

administered to W and S. H declined to make OU ARE THE trial counsel before a special

a statement to the investigator. court-martial and have received the Charge

During her interview with the investigator Sheet with charges referred to trial and an In

W was still very angry at H. She stated that vestigation Report containing the facts out of

she had reason to believe that H had been comwhich the charges arose. The indicated factual

mitting some other offenses. Within the past situation is that H, a serviceman, was placed on

month they had been discussing financial probreport by W, his wife, for injuring her with his

lems and H told her not to worry. He said he fists and by striking her with a swagger stick.

had that day taken one hundred blank liberty W also complained that H had beaten S, W's

cards from the personnel office and could sell minor son by a previous marriage, with the same

each card for $5.00 to $10.00. She did not see stick. This report had been made on payday

the cards. An inventory of the blank liberty night to the Officer of the Day who dispatched

cards disclosed an unexplained shortage of 100 military police to the on-station quarters as

cards since the last monthly inventory. An ausigned to H. The military police found Wand S

thorized search of accused's assigned quarters at a neighbor's quarters. Both had obvious

and barracks locker failed to locate any blank facial injuries and were taken to the Station

liberty cards. Two men were located possessing Hospital where they received medical treatment

liberty cards within the sequence of numbers of and were photographed with W's consent. H

those missing. Each paid ten dollars while on was found in his quarters. He voluntarily ac

liberty to an unknown man in civilian clothes. companied the military police, and was returned

They could not identify H. Because of his duty to his military organization where he was

assignment H was one of five persons who had placed under restriction by the Officer of the

access to the safe in which blank liberty cards Day. The neighbors were interviewed. No one

were stored. H denied that he had taken blank had witnessed the assaults, but all stated that H

liberty cards or that he had any knowledge of and W had a past history of marital discord and

the missing cards. usually each such occurrence ended in an as

H is charged with two specifications of assault sault by H on W and S. The next day W was

consummated by a battery in violation of Article interviewed by investigators from the Station

128, UCMJ, one specification of larceny of libCriminal Investigation Section. W voluntarily

erty cards in violation of Article 121, UCMJ, executed a signed statement wherein she described that H had physically beaten her and S

and two specifications of wrongfully selling libwith his fists and a stick. Both required medi

erty cards in violation of Article 134, UCMJ.

You review the charges and specifications and cal treatment. The report contains a statement

determine that each states an offense and is from a doctor at the Station Hospital describing

properly drawn. You anticipate a plea of not *Lieutenant Colonel Sevier is presently assigned to the Staff Legal Office, Third Marine Division. He holds the B.A. degree from Illinois guilty. Each known witness is interviewed and College and the LL.B. degree from Washington University, St. Louis, the facts contained in the report of investigation Missouri. Lieutenant Colonel Sevier is a member of the State Bar of Missouri and the State Bar of California.

are verified. S is under three years of age and

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cannot be qualified as a witness. You determine that the testimony of W is essential to the government's case. W discussed with you the contents of her written statement, but stated that she would not voluntarily appear at the courtmartial. W can be compelled to appear under the power of a subpoena.

The Manual for Courts-Martial, 1951, provides :

PRIVILEGED AND NONPRIVILEGED COMMUNICATIONS.—a. General.-A privileged communication is a communication made as an incident of a confidential relation which it is the public policy to protect. Since public policy is involved, the court, of its own motion, should refuse to receive evidence of such a communication unless it appears that the privi. lege has been waived by the person or government entitled to the benefit of it, or unless the evidence emanates from a person or source not bound by the privilege.

man.

SOURCES In your pretrial preparatory study of the applicable law and rules of evidence you determine that the problem for the presentation of the prosecution's case comes under the evidentiary field commonly called the Husband and Wife Privilege Rule. Under military law the first source of authority for questions of evidence is the Manual for Courts-Martial, United States, 1951. Under the heading "COMPETENCY OF WITNESSES”, it is stated :

Husband and wife are competent witnesses in favor of each other. Although husband and wife are also competent witnesses against each other, the general rule is that both are entitled to a privilege prohibiting the use of one of them as a witness (sworn or unsworn) against the other. This privilege does not exist, however, when the husband or wife is the individual or one of the individuals injured by the offense with which the other spouse is charged, as in a prosecution for an assault upon one spouse by the other, for bigamy, polygamy, unlawful cohabitation, abandonment of wife or children or failure to support them, for using or transporting the wife for "white slave" or other immoral purposes, or for forgery by one spouse of the signature of the other to a writing when the writing would, if genuine, apparently operate to the prejudice of such other. When the privilege does exist, it may be waived by the consent, express or implied, of both spouses to the use of one of them as a witness against the other. If one spouse testifies in favor of the other, the privilege may not be asserted upon cross-examination of the spouse who has so testified, provided such cross-examination is limited to the issues concerning which such spouse has testified on direct examination and to the question of his or her credibility,

The Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, at page 235, notes that the Husband and Wife Privilege Rule is treated in the Manual, “as a privilege and not as a rule of competency,” and further states:

It will also be noticed that this privilege does not exist, and the spouse if he or she is otherwise competent as a witness-occupies no exceptional status and may be required to testify, if he or she is the victim of the transgression with which the other spouse is charged.

There is also the problem of H's disclosure to W that their financial problems would be solved by his theft and sale of blank liberty passes. 1. MCM, 1951, par. 148e.

Among the communications to which a privilege attaches are certain communications between husband and wife, client and attorney, and penitent and clergy

Confidential communications between husband and wife, made while they were husband and wife and not living in separation under a judicial decree, are privileged. ... The person entitled to the benefit of the privilege pertaining to confidential communications between husband and wife is the spouse who made the communication; the person entitled to the benefit of the client and attorney privilege is the client; and the person entitled to the benefit of the penitent and clergyman privilege is the penitent. The general rule is that the court should neither require nor permit any such privileged communication to be disclosed unless the person who is entitled to the benefit of the privilege consents to the disclosure of the communication or otherwise waives the privilege. To this general rule there are several exceptions, among them being the following: The privilege pertaining to confidential communications between husband and wife will not prevent the court from allowing or requiring such a communication to be disclosed at the request of a spouse who is an accused, even though he or she is the person to whom the communication was made and the spouse who made it objects to its disclosure. The purpose of the privilege extended to communications between husband and wife . . . which grows out of a recognition of the public advantage that accrues from encouraging free communication in such circumstances, is not disregarded by allowing or requiring an outside party who overhears or sees such a privileged communication, whether by accident or design, to testify concerning it, nor is the purpose of the privilege disregarded by the reception in evidence of a writing containing such a communication which was obtained by an outside party either by accident or design .... However, this exception to the general rule does not apply if the outside party who overheard or saw the privileged communication, or who obtained the writing containing it, did so, in the case of a communication between husband and wife, with the connivance of the spouse to whom the communication was made. ...?

Under the factual presentation of our hypothetical case it is apparent that there are two 2. MCM, 1951, par. 151.

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