Page:The Air Force Role In Developing International Outer Space Law (Terrill, 1999).djvu/42

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say they have put one small ball in the air;” and, he added, “at this moment you [don’t] have to fear the intelligence aspects of this.”[1]

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.[2] 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. Additionally, the Soviets reversed their position of asserting sovereignty over outer space above their territory. When confronted with their apparent reversal, the Soviets adopted temporarily the rather specious position (clearly contrary to the laws of physics and astronautics) that it had not violated any other nation’s sovereignty since Sputnik had not flown over any nation’s territory but instead the territories had passed under Sputnik. Eisenhower’s hidden stalking-horse agenda of obtaining free passage in space for intelligence gathering devices had been achieved. The US was not alone in failing to object to Sputnik’s overflight of its territory. No other country objected to the overflight of their territory either, thus establishing the first custom in outer space law, that is, the free flight of objects in outer space. The USSR, in its exuberance over its successful satellite launches, made no distinction between scientific and intelligence-gathering devices (nor did any other country). When countries failed to object to subsequent satellite overflights, the custom became firmly established.[3]

Because of Sputnik I, ICAO President Walter Binaghi wrote to Nelson B. David, the US representative on the ICAO Council, inquiring whether it was time to finally consider the issue of outer space sovereignty. He also inquired as to the ICAO’s appropriateness as the vehicle to do so. Binaghi’s inquiry was referred to the ACC by David. Robert Kinsey, secretary of the ACC Legal Division, informed the members of the division of Binaghi’s letter and set the matter for consideration at the next meeting. On 8 November 1957, the ACC’s Legal Division, with the Air Force concurring, approved a position in response to Binaghi’s inquiry. Before forwarding this response, the division reviewed the earlier US

  1. Public Papers of the President of the United States: Dwight David Eisenhower, 1957 (Washington. D.C.: Government Printing Office, 1958 [210]), 724. Whether the Eisenhower administration had simply been willing to accept the Soviets being “first in space” or purposely calculated by playing Br’er Rabbit to the Soviets Br’er Bear, thereby, suckering the Soviets into going first in space so as to set the precedent Eisenhower wanted to achieve, that is, the freedom of passage in outer space, is unknown but doubtful. However, if anyone had created the scenario for the Soviets to go first in space, it appears to have been DOD civilian officials and Quarles in particular. Quarles recommended the stalking-horse strategy. Quarles issued the gag order on the discussion of military space operations. Quarles directed that no military satellite would precede a US civilian satellite both before and even after Sputnik. Finally, Quarles explained to Eisenhower, shortly after Sputnik’s success, how the Soviets had “done us a good turn, unintentionally, by establishing the concept of freedom of international space.” See Stephen E. Ambrose, Eisenhower, vol. 2, The President (New York: Simon and Shuster, 1984, 248). If Eisenhower had consciously been setting the Soviets up to go first in space, it is unlikely that Quarles would have felt compelled to explain to Eisenhower the advantage to the US from having the Soviets go first.
  2. Again it must be remembered that the focus of the US missile program was not focused on launching a satellite but rather focused on delivery of a warhead on target anywhere on Earth.
  3. Maj John Morrison-Orton, USAF, “Juridical Control of Weapons in Outer Space,” (master’s thesis, National Law Center, George Washington University, 30 September 1984), 32.