Outer Space

Problems Of Law And Policy

Glenn Reynolds, Robert Merges

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000309485
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

This book examines the international and domestic American legal problems associated with activity in outer space from a strong policy perspective, with particular attention given to problems associated with space commercialization and with military activities in outer space. Outer Space: Problems of Law and Policy is indispensable as a casebook, reference, and self-teaching tool for students, practitioners, academics, and members of the aerospace industry.

1
Some History and Background

This is a book about space law, not the history and technology of space exploration. But just as lawyers in other fields must know something (often a great deal) about their clients, lawyers serving the space industry must know something about the context in which they work. This brief introductory chapter provides an overview of how spaceflight (and space law) came to be a reality, of the key technical concepts needed to understand many important issues, and of the industry's directions in the future, along with a number of references for further reading. Readers are strongly encouraged to pursue those references, as what is set out here is the briefest synopsis (a "capsule version," if you will) of a rich and interesting literature.

Space History—The Brick Moon and All That

The idea of space travel is not new—trips to the Moon and beyond have been the subject of fanciful tales for thousands of years. But not until the last century or so did people begin seriously examining the methods and implications of going into space. It is amazing, in retrospect, how much of the work of early pioneers has remained useful—even essential—to carrying out operations in space, and how clearly some of those early figures foresaw the problems and opportunities that would arise as human beings moved into outer space.

One of the first to do so, and in many ways the undisputed pioneer of space studies, was a Russian, Konstantin Tsiolkovsky. Tsiolkovsky's work, which started over a century ago, laid the foundation for many technological developments that followed, and anticipated much that still seems futuristic today. In 1883 he wrote of the problems likely to be encountered in zero gravity; in 1903 he published an essay entitled Exploration of Cosmic Space with Reactive Devices that outlined the principles of navigation in space. Throughout the rest of his life, he wrote and pondered not only the practical, but the philosophical aspects of outer space development.

Tsiolkovsky envisioned an era in which space exploration would lead to cities in space and, ultimately, to utopian societies throughout the solar system—a vision shared by many space supporters today. Because these societies would have access to unlimited solar energy and to all the resources of the solar system's planets and asteroids, Tsiolkovsky reasoned, they would be free from the scarcities that plague earthbound economies and hence free from social problems stemming from unequal distribution of wealth. When the Bolsheviks came to power in 1917, they found Tsiolkovsky's theories well-suited to their own professed belief that social injustices stemmed from unequal distribution of wealth—and found research into rockets a promising part of efforts (first by Lenin, then by Stalin) to build up the Soviet Union's technological base and armaments industry. Tsiolkovsky, previously an obscure schoolteacher, received a seat on the Soviet Academy, and his disciples (such as Sergei Korolev, F. A. Tsander, and Valentin Glushko) began serious work on rocketry, work that was to lead to a succession of firsts by the Soviet Union in the late 1950s and early 1960s.

Although Tsiolkovsky was the first to conduct serious study into problems of space flight, many others were soon doing the same—indeed, the American Edward Everett Hale had published a science fiction story about an artificial satellite used for navigation, entitled The Brick Moon, in the Atlantic Monthly as early as 1869. Serious work on the subject in the United States, however, began with Robert Goddard. Goddard published a paper in 1919 entitled A Method of Reaching Extreme Altitudes that described the prospects for reaching outer space using rockets. Although many skeptics (including the editors of the New York Times) subjected Goddard to ridicule for what were then thought of as far-fetched ideas (such as sending a probe to the Moon), he devoted his life to the perfection of liquid-fueled rockets and provided considerable inspiration and information to the German rocket pioneers who began organizing in the early 1920s. Goddard was the first to successfully launch a liquid-fueled rocket, and the first to demonstrate a working guidance system. Aside from Goddard, various groups of enthusiasts in the United States such as the American Rocket Society, the Cleveland Rocket Society, and the Yale Rocket Club did significant initial work in the development of rocket technology and in laying other important groundwork for later space exploration efforts.

In Britain, meanwhile, the Explosives Act of 1875 (which banned all private research in ordnance) proved a near-absolute barrier to actual experimentation, providing a concrete example of how bad or shortsighted law can frustrate space development. This did not stop British enthusiasts from contributing, however— it simply forced the British Interplanetary Society, including individuals like Phil Cleator and Arthur C. Clarke, to devote energies to long range studies, such as a famous 1939 plan for a Moon mission that served as the foundation for the actual Moon landing thirty years later.

Germany, too, had its pioneer in Hermann Oberth, who in 1923 published Die Rakete zu den Planetenaumen (The Rocket into Planetary Space). Oberth's book was far more ambitious than Goddard's work, discussing ways of putting human beings into space in the (relatively) near term and the problems (such as the need for space suits, the composition of space food, and the minutiae of operating space stations) that would have to be overcome. Oberth's book was followed in short order by a number of works by other German enthusiasts, most notably Walter Hohmann, whose 1925 work on celestial mechanics set out principles still relied on today and for whom the economical "Hohmann transfer orbit" used by interplanetary space probes is named.

The next twenty years were to see a flowering of German rocket science (un-hampered by Explosives Laws) that began with small groups of dedicated individuals and culminated with the immense government-financed effort that produced the V-2 missile (designated the A-4 by its inventors). The V-2 was of dubious value as a weapon of war—each missile cost as much to build as a bomber, delivered a smaller load of explosives, and was destroyed at the end of a single mission—but it was the first really viable space booster.

W. McDougall,... the Heavens and the Earth: A Political History of the Space Age 43 (1985)

The A-4

In 1929 the Ordnance Ballistic Section of the German army assigned Walter Dornberger to develop a liquid fuel rocket of longer range than any existing gun, a sobering assignment, given that the Big Berthas of World War I fired projectiles sixty-five miles. Dornberger visited the "rocketport" of the amateur Verein fur Raumschiffahrt in Berlin, set young Wernher von Braun to work completing his doctorate, and together they recruited the Rocket Team. Just as in the Soviet Union, the rocketeers did not find state support—the state found them, and at a propitious moment. "The more time I have to think about it," wrote Willy Ley, "the more I have arrived at the conclusion that the VfR progressed as far as any club can progress. ... Experimentation had reached a state where continuation would have been too expensive for any organization except a millionaires' club."

Von Braun and Dornberger chose for their lonely, spacious test site a sweep of sandy coast on the Usedom Peninsula beyond the mouth of the Peene River. But by the time Peenemunde opened in the fall of 1939, the Wehrmacht was rolling over Poland, and Hitler decided the big rockets would not be needed. Von Braun and Dornberger pressed on, with reduced budgets, toward a prototype of their majestic A-4, the first medium-range ballistic missile, standing 46.1 feet high. It was a single-stage rocket powered by LOX [liquid oxygen] and alcohol, developing a thrust of 56,000 pounds, a payload of 2,200 pounds, and a velocity of 3,500 miles per hour while inertially guided by gyroscopes and leveling pendulums to its target 200 miles distant. The first A-4 flight test finally took place in June 1942. It failed, and so did the next. But the third bird, in October, rose from the Baltic dunes in a stable and gentle arc fifty miles high until it passed out of sight en route to the impact area 119 miles downrange. Dornberger's team watched in exultation—like the Alamogordo physicists three years later, they attended in the delivery room as a new Power was born. But where the elemental blast of the atomic bomb rendered its makers diminished, apprehensive, in a sense imprisoned, the elegant, finned cylinder of the A-4 was a metaphor of liberation, defying gravity as it soared aloft with little hint—after the first moments—of the brute force it contained. An aspiring and creative thing, it had brushed the sleeves of space.

Although their work was financed by the military and led to the V-2, von Braun's team secretly dreamed of building rockets that would carry human beings into outer space. Unbeknownst to their superiors, the German rocket teams designed larger and more powerful rockets, winged spacecraft, and atmosphere-skipping rocket/ramjet space planes. With the end of World War II, von Braun and virtually all of his key staff signed on to work for the United States, bringing their designs and the remaining stock of V-2s with them.

The immediate postwar period saw a brief flurry of interest in space activity. The exploits of the German rocket scientists were still fresh in everyone's mind, which lent credibility to plans that would have been thought outlandish in the prewar era. Arthur C. Clarke published a paper proposing the use of satellites placed in geosynchronous orbits (where they would remain in position above the same point on earth) as a means of relaying communications; shortly thereafter the RAND Corporation issued a prophetic report on the feasibility of using earth satellites for military purposes such as intelligence collection and weather observations.

But the postwar era was not fertile ground for rapid progress in the space field. America was occupied with satisfying the pent-up demand of its consumers, with helping Europe rebuild, and with countering the gradually unfolding Soviet threat, while the European powers that had played an important role in prewar years were in no position to undertake any projects beyond recovering from devastation, The Soviet Union was working on development of large boosters as a counter to American air superiority, but results were not to come for some time and no one outside a select group of Soviet leaders and engineers knew what was going on.

Still, work on space boosters continued to progress slowly in the United States, and some American scholars, politicians, and diplomats began to take an interest in issues of space law. As the Soviet Union acquired the status of America's key adversary, interest in using satellites for reconnaissance grew. There were, however, serious concerns about the international law ramifications of satellite overflights, concerns that were sharpened considerably after the Soviet Union launched the world's first satellite, Sputnik. Some argued that such over-flights would constitute violations of the sovereignty of the nations overflown, with injury being added to insult where the flights were for reconnaissance purposes. Much of U.S. strategy was influenced by these debates.

W. McDougall,... the Heavens and the Earth: A Political History of the Space Age 185–189 (1985)

Few diplomatic issues seemed as urgent and loaded with implications for world peace as the law of outer space. Here were a new complex of frightening technologies and a virtually limitless medium, opened up simultaneously for human exploitation. And just as the voyages of the Age of Discovery stimulated inquiry into the law of the sea that advanced international law generally through the work of Hugo Grotius and others, so the launching of the Space Age inspired a burst of inquiry on the fundamental principles that ought to guide all the deeds of nation-states. The most beguiling legal problems were those tied to sovereignty: could nations claim space; divide it into zones according to some scientific, political, or technical principle; make it off-limits to weaponry; extend the cooperative framework of the IGY [International Geophysical Year]? What legislative and enforcement mechanisms were preferable for space law? What arrangements could be made for advance notice of launches, exchange of data, assessment of liability for damage caused by space vehicles? Who owned the moon or the electromagnetic spectrum? How could space boosters be distinguished from military missiles? Was space development best served by an international effort or by national programs operating under ground rules? A handful of visionaries tackled such puzzles even before Sputnik. John Cobb Cooper, air law expert and fellow of Princeton's Institute for Advanced Study, took up the question of sovereignty in a 1951 article, reviewing the history of air law from the Romans (who said land ownership extended "usque and coelum") to the great jurisprudential theorists of the seventeenth and eighteenth centuries (Samuel von Pufendorf limited sovereignty in the air to the ability for "effective control"), to the Chicago Convention of 1944 (which recognized complete and exclusive national sovereignty over air space). But how far up did air extend? Sounding rockets revealed that the atmosphere did not just stop, but gradually dissipated. Cooper opted for "effective control" (also the formula chosen by the 1885 Berlin Conference, which set rules for the colonization of Africa). "The territory of each state extends upward into space as far as the scientific progress of any state ... permits such state to control it."

After Sputnik, numerous proposals were advanced for defining outer space. The so-called von Kantian line set the boundary at the point at which a vehicle traveling seven kilometers a second loses aerodynamic lift and becomes a "spacecraft." Such an event would occur about fifty-three miles up. Cooper and common law (post-October 4, 1957) indicated that space simply stopped at that point below which an orbit could not be sustained. But such "lines" were a function of velocity and therefore of technology, and were in no way innate. Everyone knew where land ended and the ocean began, but now man had entered a realm that, in a real sense, did not exist except as a function of man's own tools. Any definition of outer space was a solipsism.

The critical variable in the definition of space was perceived military interest. The higher the boundary of national sovereignty, the greater the protection against unfriendly overflight, but the lesser the ability to ply the lower reaches of space for any purpose. It was guesswork in 1958 as to which would best suit American or Soviet interests. Similarly, whether a low limit was good or bad depended on the international regime that would obtain in space. If a rigid system of international control was instituted, then national freedom was best served by a high boundary. If a laissez-faire regime arose in space, then national freedom would be greatest by lowering "outer space" as close to the earth as possible: "Open Skies."

These ambiguities gave spacefaring nations no incentive to solve the riddle. State Department counsel Becker explained that the United States, while not recognizing any top limit to its airspace, conferred the right to ply space wherever it was. In short, the United States believed in "freedom of space," but reserved its position on what that freedom entailed or where it took effect. "Moreover," he continued, "there are very great risks in attempting to transmute a body of law based on one determined set of facts (e.g., air or sea law) into a body of law with respect to which the basic facts have not been determined." The State Department was "inclined to view with great reserve any such suggestions as that the principles of the law of space should be codified...."

The principal concern of American policy was always the protection of spy satellites. But the right to launch satellites over the territory of other states was already established during the IGY. In this connection, George J. Feldman, counsel to the Senate Space Committee, declared that security considerations alone would preserve the principle of sovereign air space and work just as powerfully against a definition of where that air space ended. Satellites had already been launched without protest, implying that formal consent to satellite overflight was either unnecessary or implicitly given. "It is tempting to accept the first explanation—which would mean, for example, that President Eisenhower's Open Skies proposal is an accomplished fact. However, any such assumption would be premature and unjustified." Limited agreements on space might be made, but none should be sought "which are more comprehensive or explicit than our present knowledge warrants."

The same caution obtained in debate over sovereignty on heavenly bodies. As early as 1952 a UN lawyer, Oscar Schachter, asked "Who owns the universe?" and worried that we might someday read of colonial rivalries in space, of "lunar Washingtons and New Yorks, perhaps of King George mountains and Stalin craters." He suggested that space and celestial bodies belong, like the high seas, to all mankind. States should be allowed to develop settlements and mineral deposits, but in such a way as not to cause waste and destruction "against the general interest of mankind." The fear of a "scramble for colonies" in space, more rapacious even than the nineteenth century's scramble in Africa, also motivated space law theorists after Sputnik. But if space was not subject to sovereignty, what was its legal status? Was it res nullius—space as belonging to no one, but presumably subject to claims? Or res communis omnium—space as "the heritage of all mankind" with an implied right for a...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Preface to the Second Edition
• Introduction
• 1 Some History and Background
• 2 The International Law of Outer Space: Basic Principles
• 3 Early Treaties Governing Activity in Outer Space
• 4 Development and Defense: Treaties of the 1970s
• 5 Other Treaties, Agreements, and Issues
• 6 Space Communications
• 7 Space-Related International Trade Issues
• 8 The Law of Private Commercial Activities in Outer Space
• 9 Some Issues of the Future
• 10 Conclusion
• Credits
• About the Book and Authors
• Index