us in an untenable position should another state enact regulations controlling or prohibiting the flight of space vehicles across its territory and, in so doing, unilaterally extend the upper limits of its sovereignty to any height it desired or was capable of controlling. There is no necessity or justification for the United States to be placed in a position such as this. If through the use of exceptionally well-developed interceptor techniques that state were able to maintain positive and effective control over the airspace so claimed, the lack of any customary international law on the matter would only enhance the frustrations of the offended state or states. It may reasonably be presumed that the present two-nation monopoly of outer space will not always obtain.27 In this new context, if there is no moral custom established as a precedent by those who pioneer in space, amoral actions by those who follow afterwards should not be any great surprise. As President Eisenhower has publicly stated, the motives of the United States in this regime are directed toward the use of outer space for peaceful purposes only.28 We are therefore committed to take the first steps in the moral order to which we subscribe. acceptance of the 53-mile limit To this end, it is suggested that the United States announce acceptance of the principle that national sovereignty ends at an altitude of 53 miles. This altitude is neither an arbitrary nor an ipso facto scientific choice. It is selected on the basis of de lege ferenda, or what the law should be to properly reflect a presently existing reality of international relations. By this is meant a reality in the sense of reflecting a condition with an objective existence in time and space apart from any observer.29 To establish this limit would not be a question of extrapolating abstract legal principles into outer space but would be a frank recognition of fact. In doing this we would not be jeopardizing or compromising our position or stature in the world, nor would we be unnecessarily limiting a sovereignty that should not be limited. It has been one of the main purposes of this exposition to show that sovereignty has already been effectively limited by custom and that to acknowledge this fact would only be to acknowledge a fait accompli. Sovereignty cannot be held in abeyance. The acknowledgment of its nonexistence above 53 miles is the only rational base line from which the conventional law of outer space can proceed. The critics of such an approach may feel that this position would derogate from the inherent right of this nation to reserve all rights and privileges in outer space for a future period. The only reply is that to do nothing can be as dangerous or more so than taking action, a priori, based on a rationale which would enhance its acceptance by the rest of the nations of the world community. Perhaps the present position of the State Department, to "wait and see" and to treat this problem much like the sovereignty problem of the Antarctic, may have already served its full useful period.30 Since the problem must inevitably be faced, it appears more reasonable to face it from a tenable position in advance than to risk facing it defensively in a manner or at a time not of our own choosing. The argument may also be heard that this action would impinge upon this nation's security. Under the United Nations Charter all nations possess the right of self-defense. The inherent right of a nation to protect itself from harm knows no particular locus. Should this nation be threatened from or through outer space, our response would be immediate regardless of the regime in which the threat originated. This is the precise context in which General White was speaking when he said that air and space are indivisible.31 international cooperation For the future of outer space, we can assume it would be possible to continue unabated the technical cooperation on an international basis that was highlighted by the work of the International Council of Scientific Unions during the IGY. This same group recently formed a special committee for the purpose of directing space research.32 This kind of scientific cooperation could easily lead to international agreement on an intergovernmental basis. In this respect a recent staff report of the House Select Committee on Astronautics and Space Exploration proposed the formation of an international body to promote the peaceful conquest of outer space. This report urged the United States to take the initiative, along with the other Western nations, in the hope that the U.S.S.R. would find it advantageous to join. The new organization, in contrast to that proposed by the International Council of Scientific Unions, would include government as well as scientific representatives.33 As Dr. Lloyd Berkner, president of the ICSU, pointed out, during the IGY all scientists had complete congeniality and free discussion in their projects and, with the exception of Red China, “all other nations have laid politics aside on the grounds that genuine scientific enterprises should have no political implication of any kind."34 If this type of cooperation is to continue, these scientists must know the political context of the medium within which they carry out their investigations. To this end, a nonsovereign area is a nonpolitical area. THE last theme in this very abbreviated treatment of a complicated problem is to emphasize the difficulty of attempting to establish the beginnings of a code of space law by agreement before custom has had a chance to be tested in the crucible of experience and acceptance. As they have in the past, so also in the future international discussions on outer space may bog down by being inextricably linked to extraneous issues. Such has been our experience in the United Nations discussions on outer space. Also, premature agreements may be worse than no agreements at all. We have only to review the actions of the U.S.S.R. in respect to its international obligations to see that its compliance with previously signed agreements is completely unpredictable, as witness the present Berlin difficulties. It is firmly believed that in the normal course of events international law, whether it be terrestrial or extraterrestrial, follows a natural and sequential evolution which will not be diverted. The publicists have had and will continue to have their say. Custom is in its gestation period and will not be hurried. Here, it is only urged that there be a significant contribution to this developing custom. Convention will inevitably follow in due time, but the time is not yet here. Only after we have entered the "cold caverns of infinity" on a solid foundation of custom will we be ready to allow the international law of space to reach its full fruition in international convention. Headquarters United States Air Forces in Europe REFERENCES 1. Harold D. Hazeltine, The Law of the Air (London: University of London Press, 1911), p. 142. 2. U.S. Congress, Senate, Convention Relating to International Air Navigation, 66th Congress, 1st Session, 1919, Senate Documents, Vol. 8. 3. U.S., Statutes at Large, XXXXIV, Part 1, 568. 4. U.S., Statutes at Large, LII, Part 1, 973. 5. U.S., Statutes at Large, XXXXVII, Part 2, 1901. 6. Green H. Hackworth, Digest of International Law (8 vols., Washington: U.S. Government Printing Office, 1940-1947), I, 1. 7. United States v. Causby, 328 U.S. 256 (1946). 8. Hans Kelsen, General Theory of Law and State, ed. Anders Wedberg (Cambridge, Mass.: Harvard University Press, 1945), p. 217. 9. John C. Cooper, "High Altitude Flight and National Sovereignty," International Law Quarterly, IV, No. 3 (July 1951), 418. 10. John C. Cooper, "Legal Problems of Upper Space," Proceedings of the American Society of International Law, 50th Annual Meeting, Washington, D.C., 25-28 April 1956, p. 92. 11. The Times (London), September 2, 1957, p. 9. 12. John C. Cooper, "Missiles and Satellites: The Law and Our National Policy," American Bar Association Journal, XXXXIV, No. 4 (April 1958), 321. 13. Richard T. Murphy, Sr., "Air Sovereignty Considerations in Terms of Outer Space," The Alabama Lawyer, XIX, No. 1 (January 1958), 34. See also: Remarks of P. K. Roy, Proceedings, American Society of International Law, 1956, p. 94. 14. Andrew G. Haley, "Law and the Age of Space," St. Louis University Law Journal, V, No. 1 (Spring 1958), p. 3. 15. Ibid. 16. Myres S. McDougal and Leon Lipson, "Perspectives for a Law of Outer Space," American Journal of International Law, LII, No. 3 (July 1958), 425-26. 17. "Air Code of the U.S.S.R. Approved by the Central Executive Committee of the U.S.S.R. April 27, 1933," Journal of Air Law, IV, No. 3 (July 1933), 441. See also: I. S. Pereterski, "The Air Code of the Union of Soviet Socialist Republics," Air Law Review, IV, No. 1 (January 1933), 153. 18. New York Times, October 12, 1958, pp. 1, 11. 19. New York Times, October 14, 1958, p. 72. 20. New York Times, November 18, 1958, pp. 1, 5. 21. James J. Haggerty, Jr., "Assignment Space," Planes, May 1958, p. 3. 22. Andrew G. Haley, "The Rule of Law in the Space Age," Foreign Policy Bulletin, XXXVII, No. 24 (September 1, 1958), 190. 23. New York Times, October 27, 1958, p. 1. 24. Schooner Exchange v. M'Faddon, 7 Cranch (U.S.), 116 (1812), at 136. 25. House Select Committee on Astronautics and Space Exploration, Hearings on H.R. 11881, p. 1266. 26. Ibid., 1434. 27. See the testimony of Dr. Lloyd V. Berkner regarding Red China: House Select Committee on Astronautics and Space Exploration, Hearings on H.R. 11881, p. 1043. 28. U.S. Department of State Bulletin, XXXVIII, No. 970 (January 27, 1958), 122. 29. Quincy Wright, The Study of International Relations (New York: Appleton-Century-Crofts, Inc., 1955), p. 11. 30. Loftus Becker, "United States Foreign Policy and the Development of Law for Outer Space," JAG Journal, February 1959, p. 29. 31. Thomas D. White, “Air and Space Are Indivisible," Air Force, March 1958, p. 40. 32. New York Times, October 2, 1958, p. 30. 33. New York Times, October 19, 1958, p. 18. 34. House Select Committee on Astronautics and Space Exploration, Hearings on H.R. 11881, p. 1044. D The Ordering of COLONEL WILLIAM O. Davis, afres URING the week that technological warfare became an unquestionable reality for the Department of Defense, I was on active duty in Washington and had the good fortune to be an active observer of the event. A few days before the launching of the first Soviet satellite I was privileged to discuss the subject with officials very high in the Department. A few days after the first Soviet satellite I had the interesting experience of discussing the same subject with the same people. In the interim I had attended a meeting of the International Astronautical Federation at Barcelona, Spain, where I had seen firsthand the impact of the Soviet achievement on our European allies. There was no question that our allies were frightened by the Soviet technical victory and that our ability to influence affairs in Europe had been seriously damaged. Although there was still some expression of the philosophy that the only important factor was the force in-being and not “technical stunts," there could be no doubt that the full political impact of the loss of the first major battle in technological warfare was felt in the highest levels of government. It suddenly had to be faced that the United States was at war and had been for some time-a technological war rather than a military war but nonetheless a war in which the ultimate survival of the nation might hang in the balance. If this indeed be the case, what then is technological warfare? How did we get involved in it? What constitutes victory and defeat, and what are the overall effects on our national survival? What is technological warfare? First of all, we cannot define war as consisting solely of the application of military force to achieve national objectives. With the launching of Sputnik I, we saw major political results achieved by the application of a force that was nonmilitary in nature. Even prior to Sputnik many important forms of warfare were not covered by the classical definition. To provide a working definition for the sake of discussion, let us tentatively define war as the application of national resources to achieve national objectives in competition with other nations. Fundamentally the outcome of any war is deter |