forty scientists, augmented by less than eighty administrative, clerical, and other supporting personnel. The record becomes even more impressive when one remembers that only a short time ago much of the energy of the staff had to be devoted to defending the Air Force's basic research program from those who had budgetary authority but little understanding of science. Many of us vividly recall the days, not so long ago, when "research" was a dirty word in the Air Force, to be avoided at all costs. Whatever research projects were undertaken were hidden under the blanket of "technical development," with funds provided for them by farsighted military leaders who knew that they ran a real risk of severe censure and possible premature retirement if their encouragement of this "long-haired stuff" were exposed. In this light, the courage and judgment exhibited by Generals Power and Anderson and Gregory, which I cited earlier, become truly remarkable. We who pursue military scientific research in these more enlightened days owe them a heavy debt. I began this article by calling basic research the "Cinderella" of science. To carry the analogy a bit further, we are now enjoying the novel experience of being the belle of the ball, with the Prince Charming of public opinion apparently ready to grant our every wish. I can only earnestly hope that we will escape reversion to rags at the stroke of midnight. Because basic research offers three important values: 1. Basic research has the value of serendipity-the unique ability of the researcher to uncover again and again principles of worth and information of consequence that are far beyond the limits of reasonable expectation. Our investigators are constantly discovering data they were not seeking. The dividends that accrue to our Nation and our Air Force from this quality alone are incalculable. 2. Basic research has the value of economy. It is the cheapest commodity we can buy. The costs associated with research begin to mount in orders of magnitude only after basic research has proved the application to be practical. Many of our most potent weapon systems and many of our civilian industries are based on the results of a basic investigation which itself cost less than a two-ton truck. 3. Basic research has the value of open visibility. One proof of this is that over 95 per cent of the research supported by AFOSR is on the unclassified level. One simply cannot classify a law of nature; it is there for anybody to find. The history of science is full of discoveries that were made more or less contemporaneously by two or more scientists working not only independently but completely unaware of each other's efforts. A natural phenomenon is there for us to see and to interpret, just as it is there for the scientists of the Soviet Union or any other nation to see and interpret. This leads to my final and firmest belief: if America ever again fails to encourage her scientists to explore the unknown, in whatever direction the unknown may lie, the effect may be nothing less than disaster for the way of life that America has come to represent to all the free peoples of the world. Headquarters Air Force Research Division (ARDC) Outer Space and MAJOR CHARLES A. ROBERTS UNTIL just a few years ago the height to which a nation's sovereignty ex tended above its territory was primarily an academic question. It is true that as early as 1900 international lawyers were speculating on whether states enjoyed an extension of national sovereignty into the superjacent airspace, but their speculations were based on only the most fragmentary knowledge of the embryonic science of aeronautics. They were actually more legalistic exercises than attempts to solve contemporary problems. Indeed the liberality of the views of these early authorities was in inverse proportion to the degree of progress in the science of aviation. Before international flights became a regular occurrence there were strong tendencies to be very liberal and to declare the air to be free to all, much like the open seas. When international flights became a reality, the free-air theories were discarded as the various nations extended their sovereignty into the airspace by means of regulations, statutory enactments, treaties, and international agreements. The rejection of the doctrine of freedom of the air was based not only on the fact that it impinged upon the inherent right of a state to protect itself but also on the fact that it had not had the benefit of sustained national practice and therefore lacked historical and juridical soundness. One of the earliest authorities on international air law noted that the doctrine of freedom of the air "rests on no solid rock of past development and on no solid rock of consistent principle."1 evolution of international air law This same "past development" and "consistent principle" have largely determined the subsequent course of international air law through international agreements. For this reason the doctrine of full sovereignty in national airspace did not assume the proportions of a true international principle until its adoption as a guiding rule of international conduct by belligerents and neutrals alike during World War I. In the case of the belligerents, exclusive sovereignty was taken for granted. When enemy aircraft appeared in national airspace, there was no doubt as to the action that would be taken. The matter was not so clear-cut for the neutrals, as there was no authoritative precedent upon which to draw. Taking their cue from the belligerents, the neutrals de veloped through custom and practice the principle that any aircraft violating their airspace were interlopers. In many cases they were pursued, fired on, or shot down and their crews interned. The question of air sovereignty during wartime was answered unequivocally. National airspace came to be considered as sacrosanct as sovereignty itself and was no less jealously guarded. Thus theory was crystallized in the practice of states. Once established, there was little logic to suggest that these principles would be abandoned when the war was over. At the peace conference an aeronautical commission was formed to draft the air clauses of the peace treaty and to prepare a peacetime international aviation convention governing postwar international aviation. The commission was composed chiefly of military officers of the Allied Powers, including several who had had considerable experience in wartime cooperation as members of the Interallied Aviation Committee. The outstanding work of the Aeronautical Commission resulted in the Convention Relating to International Air Navigation, known as the Paris Convention of 1919.2 The convention recognized that every state had complete and exclusive sovereignty over the airspace above its territory. The territory of a state was understood to include the national territory of both the mother country and its colonies and the territorial waters adjacent thereto. When the parties to the convention agreed on the principle of complete and exclusive sovereignty, they were not creating a sovereign right but were merely affirming its observance as between the states that were parties to the convention. Although the United States never ratified the 1919 convention, this was not a reflection on the political philosophy of the convention or on the excellence of its technical annexes and the International Commission for Air Navigation which was to administer them. The 1919 convention did serve as the model for subsequent United States legislation. Section 6 of the Air Commerce Act of 1926 stated in part: The Congress hereby declares that the Government of the United States has, to the exclusion of all foreign nations, complete sovereignty of the airspace over the lands and waters of the United States, including the Canal Zone.3 The principle was established, and no significant change was to be made in the legislation that followed. Section 1107 (i) (3) of the Civil Aeronautics Act of 1938 amended the above passage to read: The United States of America is hereby declared to possess and exercise complete and exclusive national sovereignty in the airspace above the United States, including the airspace above all inland waters and the airspace above those portions of the adjacent marginal high seas, bays, and lakes over which by international law or treaty, or convention, the United States exercises national jurisdiction. At the Sixth Pan-American Conference twenty-one American states signed the Havana Air Convention of 1928.5 The sovereignty question was settled in the first article of the convention. The high contracting parties recognized that every state had complete and exclusive sovereignty over the airspace above its territory and territorial waters-almost the identical statement made in the Paris Convention of 1919. The 1944 Chicago Convention on International Civil Aviation superseded both the Paris and Havana conventions. Again the treatment of air sover eignty was unequivocal. In Article 1 each contracting state recognized that every state had complete and exclusive sovereignty over the airspace above its territory. In Article 2 the territory of a state was deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection, or mandate of such state. In this very brief sketch of the evolution of the air sovereignty concept in international law it may be seen that the regime of the air has followed the classic pattern of development of international law in other fields. In this evolution writers on the subject have always led the way, with their often conflicting theories. Just as the law of the sea had its Grotius and Selden with their conflicting views of whether or not the high seas should be open to all, so also did the law of the air have its Fauchille and Westlake with their opposing views of whether or not airspace should be free to all. Of course it is not the writers that make international law. It is the usage and the practice of states that begin the real determination of what international law is. Actually international law is as much political as it is juridical. For the most part international law is a system of jurisprudence which is a result of the experience and necessities of situations that have arisen in the past. It has developed "with the progress of civilization and with the increasing realization by nations that their relations inter se, if not their existence, must be governed by and depend upon rules of law fairly certain and generally reasonable." 6 In short, following after the writers and the establishment of usage and custom, the ultimate expression of international law comes in the treaty or international convention. The first principles of international air law were established in the Paris Convention of 1919, were reaffirmed in the Havana Convention of 1928, and collated in the Chicago Convention of 1944. from air law to airspace law In this evolution through the two world wars and three conventions, the complete and exclusive sovereignty of the subjacent state in its airspace was never questioned. “Airspace" in the normal context was taken to mean, by its nature alone, that portion of a state's three-dimensional territory which was neither underground nor on the surface of the earth but was above As in the early years of the air age, the dawning space age has led nations to ask “How far up is ours?" The answer must come from international law, and yet traditionally international law arrives at answers much more slowly than today's technology poses new problems. Major Charles A. Roberts, Chief, Political and Economic Branch, Directorate of Air Intelligence, Headquarters United States Air Forces in Europe, argues that the legal foundation for "free space" has already been laid in the series of uncontested orbiting flights by IGY and other satellites. If this is so, then the burning question becomes "At what altitude below orbital height should national sovereignty end?" Major Roberts urges that it end at the 53-mile limit proposed by the Karman primary jurisdiction line. national territory in which that state exercised sovereignty and control of all human conduct. By common consent it has always been recognized also that all states possess complete and exclusive sovereignty in their airspace, regardless of their intentions or ability to exercise effective control. Until recently it was as unnecessary to define airspace as it was to define land area. Common consent and understanding gave universal acceptance to the postulate that airspace was that portion of a state's territory which could be seen and which extended upward indefinitely. By “indefinitely" here is not meant the illogical extreme of extending sovereignty into outer space beyond the planets and galaxies. In the past there was never any real need or purpose in attempting to delineate the end of air sovereignty. The rationale for the development of international air law in this respect was expressed in succinct terms by Hans Kelsen. He defined the territory of a state as being three-dimensional and stated that the efficacy of the national legal order extended not only in width and length but also in depth and height; further, a state could enforce the provisions of international conventions only within that part of the airspace over which it had effective control.8 This principle of "effective control" was visualized as a dynamic concept in which further technical progress meant further extension of control beyond the airspace. But theory collided head-on with national practice when the first satellites were launched. Since the very first day that a satellite was placed in orbit, the question of the extension of sovereignty into the airspace has no longer been merely academic. The satellites are there for all the world to see and hear. Their very existence demands an answer to the sovereignty question. For several years before the first satellites were launched it was common knowledge that the theory of sustained orbital flight was soon to be tried, since the prerequisite ballistic missile assets were rapidly improving. As was to be expected, the writers on international law were ready to lead the way at their own level of abstraction. They were soon formulating propositions as to the political and juridical implications upon international law that an extraterrestrial vehicle might have. concepts of airspace Of the many writers in this field two must be mentioned here: John C. Cooper, formerly director of the Institute of Air Law at McGill University, and Andrew G. Haley, president of the International Astronautical Federation and general counsel of the American Rocket Society. Both have been intimately associated with the progress of international air law and the evolution of space law. Both have made significant and lasting contributions to the discipline of public as well as private international air law. In 1951 Cooper's views tended toward the "effective control" theory, but he was not satisfied with this approach. He also believed that, if effective control determined the extension of sovereignty into outer space, the only rational approach was that the limit claimed by the most advanced state should be enjoyed by all states, regardless of their strength. In 1956 Cooper |