At least provisionally, space flight appears to be considered not inherently subject to exclusive sovereignty of an "under"-lying national state. The threat that air sovereignty would be extended automatically to space flight seems for the present to have receded. Both the US and the SU [Soviet Union] have behaved as though the national air sovereignty which they acknowledge all states to possess did not extend so as to require them to obtain prior consent for geocentric orbital "over"-fiights or for deep-space-probe "over"-fiights, though the programming of a few shots whose missions might have been considered "delicate" may have owed something to a desire to avoid "over"-fiight of certain territories. Official US statements have gradually approached an explicit declaration that outer space is, in general, free. Legal opinion in the US and the SU has on the whole taken the same position, as has that in other countries.[1]
The RAND report continued: "The final victory of the 'freedom of space' should not be taken for granted. In the history of international air law, roughly analogous notions prevailed for a short time among some, perhaps most, of the interested legal scholars, but opposing ideas and military considerations, later fortified by economic interest, carried the day for national air sovereignty."[2]
Except for its yet to come Project West Ford, the Air Force reached the high water mark of its influence on the development of outer space law in 1958. Through its role at the ACC, it clearly had been effective in advocating a go-slow approach and in its efforts to achieve an ad hoc, decentralized generation of the law based on practice. By its actions within the ACC, the Air Force had succeeded in establishing the principle that practice and technology drive the creation of international outer space law as the fundamental thrust of US policy. The RAND report sustained that momentum. Nonetheless, President Eisenhower had obtained his goal of achieving freedom of passage in outer space. Ironically, for all the tension between the Eisenhower administration and the military regarding the president's space-for-peace policy, the Air Force sponsored approach of deriving outer space law through practice and custom had assisted in providing the means by which Eisenhower's freedom of passage principle had been achieved. All were just unhappy that the Soviet launch of Sputniks I and II was the spark that set the events in motion leading to general international acceptance of that principle.
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