The Air Force Role In Developing International Outer Space Law/Air Force Opposition to International Conventions on Space

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Chapter 2

Air Force Opposition to International Conventions on Space

The Air Force had a major impact on the evolution of outer space law during the 1950s through its close relationship to the Air Coordinating Committee (ACC).[1] Before Sputnik I, the United States had resisted the efforts of Professor Cooper and others to establish an international convention for outer space. US opposition was, in large part, due to the strong and particularly active role that the Air Force played within the ACC.

Early Air Force Actions Affecting Outer Space Law

The idea for creating the ACC emerged on 26 December 1944. In a memorandum, Assistant Secretary of War for Air Robert A. Lovett[2] recommended establishing an interdepartmental committee “to obtain the information and guidance necessary to make demobilization policies and procedures as effective as possible in preserving the productive capacity required for future national defense.”[3] On 27 March 1945, Acting Secretary of State Joseph C. Grew, Secretary of War Henry L. Stimson, Secretary of Navy James Forrestal, and Secretary of Commerce Henry A. Wallace signed the “Interdepartmental Memorandum Regarding Organizing of Air Coordinating Committee.”[4] On 19 September 1946, President Harry S Truman issued Executive Order 9781, Establishment of the Air Coordination Committee.

Under Truman’s executive order, the Air Coordinating Committee held the authority to establish US policy regarding international law affecting air and outer space. The ACC had authority to take its views directly to the International Civil Aviation Organization (ICAO) as representing those of the United States.[5] Given that the ICAO had a Legal Committee, the ACC created a parallel Legal Subcommittee (later division). The purpose of the subcommittee was to “provide machinery to develop and coordinate the policies which would guide the positions to be taken by the US delegation to the Legal Committee” of the ICAO.[6] The Air Force, which only recently had been separated from the Army, was ​assigned as the working group for this effort. With the Air Force concurring, the ACC encouraged US compliance with all ICAO recommendations except when, among other reasons, the implementation would be detrimental to the national interest.[7] Until November 1949, the Air Force and Navy had individual service representation on the Legal Subcommittee. At that time single military representation became desirable and an assistant general counsel became the Department of Defense (DOD) member on the subcommittee.[8] While formal membership of the military services on the subcommittee ended, they did not cease active participation in the Legal Subcommittee.

Robert A. Lovett, Assistant Secretary of War for Air

The importance attached to being an active participant of the ACC isdemonstrated by the effort the military services exerted to maintain an active presence at the ACC. In addition to its departmental or secretarial level (Department of the Air Force) representation on the ACC, the Air Force had a staff liaison officer to the ACC. The Air Force also retainedmembership on the ACC Subcommittees on General ICAO Matters andon the Chicago Convention. In 1952 the Air Force had regained service membership on the Legal Division. However, within the Air Force therewas divisiveness regarding its representation at the ACC. Members of theAir Staff had become restive over not receiving adequate coordination from the ACC on issues of importance to the Air Staff. Officials recounted that the Air Force liaison officer had given up membership on ​the Legal Division to the general counsel of the Air Force. One Air Staff official recommended that an Air Force staff judge advocate be designated as an alternate member to the Legal Division, noting that “Air Force membership on the Legal Division should emanate from the Air Staff.”[9] After some discussion, the Air Staff concluded that members of the judge advocate general (JAG) corps should not have to wait for the initiation of coordination. Instead they should take an active approach and “force” consideration of their concerns on the Air Force general counsel representative to the Legal Division.

During the years following the 1944 Chicago Convention, Professor Cooper continued to work and publish on issues associated with sovereignty of airspace and outer space. His works often became the focal points of discussion particularly within the ACC Legal Division. Cooper sought to establish a direct relationship with the Air Coordinating Committee. He wrote Delbert W. Rentzel, chairman, Civil Aeronautics Board, and an ACC member, to inquire whether any ACC attorneys might desire to work under Cooper at the Institute of Air and Space Law opened in September 1952-at McGill University.[10] By 1955 Professor Cooper had concluded that an international convention similar to the Chicago Convention for airspace was needed for outer space. He supported the principle of freedom of passage in and opposed the assertion of national sovereignty over outer space. Undoubtedly, he would have included such in any convention he proposed; however, there is no assurance that the ICAO would have agreed with Cooper or with his definition as to where outer space began.

Although Cooper and President Dwight D. Eisenhower agreed as to the goal to be achieved, it is unclear to what extent Eisenhower and others in the United States agreed with the point of delimitation that Cooper proposed. The primary divergence between Cooper’s proposal and the position of Eisenhower was over how the principle would be established. Whereas Cooper proposed that it be by convention; Eisenhower and the Air Force preferred that the law be derived by custom and practice. Eisenhower’s goal had apparently not been shared with or been digested by many military officials in the Air Force. Thus, certain Air Force officers periodically made statements contrary to the freedom of passage principle.

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During the spring of 1956, Cooper met with ACC chairman Louis S. Rothschild.[11] Because of that meeting, Ronald C. Kinsey, secretary of the ACC Legal Division, requested answers to the following questions:

Should the ACC consider and recommend US positions re-outer atmospheric space in relation to sovereignty problems raised by use of present and future rockets and missiles?

Could a legal panel be useful?

When a US position is determined should there be an international convention?[12]

Kinsey noted that in addition to Cooper, Oscar Schachter, C. Wilfred Jenks, and Andrew J. Haley (director and general counsel of the American Rocket Society)[13] had proposed the above questions given that Cooper and others had placed the general subject of outer space sovereignty on the agenda for the Tenth Session of the World Assembly of the ICAO to be held in Caracas, Venezuela, in June 1956.[14] On 7 March 1956 the Legal Division met and considered these questions, With the Air Force representative strongly concurring, the division concluded that “the problems posed by Mr. Cooper’s questions involve extremely important policy as well as legal considerations, Security aspects, and the possible need for a non-traditional type of approach, would make it imperative that the matter be kept flexible pending further study by the United States.”[15]

The ACC Legal Division further concluded that consideration of the issues by an international body was premature and that the United States should consider the important policy problems within its own government prior to endorsing such international action. Finally, the division recommended that the US object to even the study of the matter by an international body as being premature. These recommendations did not sway Cooper and he pressed his position to the point that, in an April press release, the ICAO announced the need for an international agreement on outer space sovereignty.[16] Air Force officials perceived that Cooper was “agitating” for an international convention on outer space.[17] As a result, US government officials became concerned that not

​just discussion of the general issue but that a convention might be placed on the agenda at the upcoming ICAO world assembly.[18]

The Air Force representative at the ACC, Assistant Secretary for Materiel Dudley C. Sharp,[19] responded to Cooper’s proposal by writing ACC Chairman Rothschild. Noting that the proposal entered an “uncharted area of thinking [and] cut across certain high-level policies…such as the President’s mutual inspection proposal, the recent Air Force weather balloon problem, earth satellite projects, and guided missile testing projects,” Sharp recommended that the ACC postpone consideration of the proposal. He argued that until higher-level policies had been developed, the Air Coordinating Committee consider only “appropriate means whereby such higher-level policy considerations can be isolated and promptly considered.” Finally, Sharp proposed that the United States adopt a position at the ICAO seeking to have the matter postponed as being premature. Sharp argued that Cooper’s proposition posed a “number of problems which should properly be disposed of at the National Security Council or Presidential level” before being considered by the ACC. Once such national security issues were resolved, Sharp indicated he felt comfortable with the ACC dealing with the issue and allowing legal experts to “attack the problem of drafting a United States position on any proposed international convention.”[20] At the same time, Secretary Sharp asked Air Force chief of staff Gen Nathan F. Twining for Air Staff “views on the military implications of an international convention regarding the use of outer air space.” Sharp encouraged the other services to also review the issue.[21]

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Dudley C. Sharp. Sharp served in various high-level offices in the Air Force, eventually becoming secretary of the Air Force in 1959.

In letters dated 9 and 10 April 1956 to Chairman Rothschild, Cooper encouraged the ACC to reject the position of its own Legal Division.[22] Given Eisenhower’s July 1955 statement that the United States would include a satellite as part of its IGY effort, Cooper argued that the US had precipitated the need to resolve the issue of sovereignty by announcing its intention to launch a satellite into outer space. Cooper felt that if the US was prepared to launch such a satellite, it ought also to be prepared to state its position on the sovereignty issue. In a second letter, Cooper reiterated his earlier position. He reasoned that the United States, by announcing its intention to launch a satellite, had accepted the proposition that it did not retain sovereignty of the outer space above its territory and thereby waived any legitimate grounds on which to object to foreign satellites passing over its territory. Cooper’s argument was clearly in accord with President Eisenhower’s position of espousing a freedom of passage in outer space, but the president’s position and its implications had apparently not yet been communicated outside a small circle of advisors. Given Professor Cooper’s efforts, ACC Chairman Rothschild quickly responded to Secretary Sharp’s request. Rothschild reiterated the positions taken by Kinsey and the Legal Division and welcomed Air Force and other DOD input when the studies Sharp had initiated were completed.[23]

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Cooper was not about to let the issue die based on the ACC’s actions. In an address to the annual convention of the American Society of International Law (ASIL), he discussed the issues associated with outer space sovereignty and urged that outer space law issues be resolved through an international convention. Also at the ASIL convention, Professor Cooper proposed, among other things, a convention providing that all space above “contiguous space,” that is, three hundred miles above the earth’s surface, be free for the passage of all devices. Perhaps because of its premature nature, but for reasons unknown, Cooper’s proposal did not pass.

In the meantime, by memorandum dated 9 May 1956, Col Paul W. Norton, director of civil law, Office of the Judge Advocate General, responded to the request by Sharp and General Twining for an Air Force position. Colonel Norton informed Maj Gen Richard C. Lindsay, acting assistant deputy chief of staff for operations, that any international convention was “premature and contrary to the best interests of the Air Force.” Noting that the United States had “assumed the lead in the research and development of long-range guided missiles, rockets, and satellite programs,” Norton advised that “any codification of formal, intergovernmental rules at this time would operate to fetter the unbounded use of outer space for military research and development.” He based this conclusion on the fact that current US programs were military sponsored and that past international conventions regarding airspace allowed military over flights only with special authorization of the subjacent nation. Norton concluded that a like provision would be included in any convention dealing with outer space.

Colonel Norton argued that, given that the United States was more advanced than any other nation, the effect of such a convention would have a more profound effect on the US than on anyone else, including the USSR. He cited case law stating that any nation can take any reasonable and necessary measures to protect its national security even outside its territory and airspace. Based on these legal precedents, he concluded that should foreign use of outer space jeopardize its security then the United States, for its self-defense, could undertake reasonable and necessary unilateral restrictions on the use of space by other nations. Norton argued that other nations would accept such moves and that the US should be prepared to accept similar restrictions if imposed by other nations. He contended that so long as other nations did not raise objection to US programs and no other nation’s program presented a threat to the United ​States, any international convention would hamper Air Force missions and research. Finally, he advised:

In this formative stage, we believe the practice of nations will create a more realistic precedent for future conduct in outer space than formulation at this time of international rules which could not possibly be grounded in actual practices and experience, but only on the abstract theories of each country’s statesmen and jurists. The value of actual practice is especially important so long as the United States has the capability of leading the way in establishing the precedent.[24]

Maj Hamilton DeSaussure and Maj Gen Albert M. Kuhfeld. DeSaussure prepared key position papers for the Air Force JAG office in support of the Air Force’s position in the early debates about outer space. General Kuhfeld later became The Judge Advocate General of the Air Force and was a leading advocate of the Air Force taking a proactive posture in attempting to shape international law as it related to outer space.

Colonel Norton’s early pronouncement of an Air Force position opposing Cooper’s efforts had been analyzed and written by Maj ​Hamilton DeSaussure.[25] Ironically, Major DeSaussure had been Cooper’s student, having been a member of the first class to graduate from McGill University’s Institute of Air and Space Law.

At the June 1956 ICAO meeting, as a result of the recommendations of the Air Force and others, the US “took the position that international discussion was at that time premature.” Generally, the US sentiments were shared by other nations and Cooper’s proposal was tabled.[26] However,

the [Legal] Commission [of the ICAO] noted the growing interest among jurists in the problems concerning “Outer space.” [The Commission] considers that these problems fall essentially within the province of the functions of the Organization and that, at a suitable time, they might be included in the general work program of the Legal Committee.[27]

In its 1956 Annual Report to the President, the ACC related that its Legal Division had formulated the US position for discussions regarding the legal problems of outer space in preparation for the ICAO meeting in Caracas. The ACC reported: “Among other things in its position, the United States delegation strongly opposed inclusion of the topic ‘Legal Problems beyond Air Space’ in the work program of the ICAO Legal Committee on the ground that there is insufficient knowledge at the present time of the practical problems for which a solution may be necessary.”[28]

Air Force Actions before and after Sputnik

In January 1957, during his State of the Union message, President Eisenhower expressed a willingness to accept an international agreement to control missile and satellite development for use in outer space. He linked this position to his space-for-peace and disarmament proposals.[29] Later that month, during a disarmament debate, Henry Cabot Lodge, US ambassador to the United Nations (UN), reconfirmed such US willingness. Lodge noted that several nations were proceeding to launch objects into outer space and that some form of international control needed to be established.[30]

Shortly after Eisenhower’s State of the Union address, in an air intelligence report entitled “The Legal Status of Outer Space and the ​Soviet Union” (approved by Col Clifford R. Opper, Air Force director of intelligence), Maj Howard J. Neumann discussed international law and the Soviet interpretation of outer space.[31] Major Neumann noted that while the Soviets claimed unlimited sovereignty to all space (air and outer) over its territory, the Chicago Convention[32] was premised on the 1919 Paris Convention’s[33] use of the French words meaning atmospheric space. Accordingly, Major Neumann argued that outer space was governed by no existing law. He pointed out that the USSR, which was not a party to either convention, did not limit its sovereignty to the stratosphere.

Major Neumann concluded that “an international convention seems to be necessary at an early stage of mankind’s penetration and exploration of outer space, in order to prevent undesirable interferences which end in loss of human lives and valuable material.”[34] Contrary to the Air Force position at the ACC, Major Neumann concluded that Cooper’s proposal had merit and advised that, since the USSR had projects planned for outer space, it might be possible to conclude an international agreement with the USSR establishing the legal status of outer space. If the issue were not resolved, Major Neumann predicted that it would serve as a “constant source of international complications.”[35]

The sovereignty issue was raised again during the summer of 1957. Col T. J. Dayharsh of the Permanent Joint Board of Defense (Canada and the United States), questioned Howard E. Hensleigh, assistant DOD general counsel for international affairs, regarding the legality of proposed flights of US intercontinental ballistic missiles through the “upper air space” over Canada. Hensleigh in turn requested assistance on Colonel Dayharsh’s request from the DOD military departments. In July, responding on behalf of the Air Force, Charles L. Kent, assistant general counsel, provided Hensleigh with substantive comments including references to the 1956 ICAO assembly and the success of the US in stripping outer space issues from the ICAO agenda. Hensleigh incorporated several of Kent’s suggestions including the ICAO reference in a memorandum to Dayharsh indicating that there was no internationally accepted line of demarcation between air and outer space. That fall Dayharsh thanked Hensleigh, noting that his “excellent ​

background material and advice on a desirable United States position was made available to briefing officers and used by them in briefing selected Canadians.” Colonel Dayharsh noted that the “Canadian viewpoint coincides with that approach to the question recommended [by Hensleigh]” and that all issues had been satisfactorily resolved.[36]

The Soviets launched Sputnik I on 4 October 1957 and Sputnik II in November. During the several months before the launchings, “there was furious activity on the Air Staff on space matters.”[37] The Air Staff was preparing for an Air Force space launch of a “civilian” satellite at Cape Canaveral.[38] During this time, the legal ramifications of the launch were being studied, particularly the issue of whether an orbit over another country would violate its sovereignty. The JAG’s International Law Division advised the Air Staff to the effect that there was no answer to the sovereignty issue “because no spacecraft had ever been successfully launched and no international agreement existed on the subject.”[39] Neither practice nor treaty was yet in effect.

Having learned of the Soviet’s successful launch and orbit of Sputnik, several Air Staff members rushed to the office of General LeMay, the vice chief of staff. Having briefed him on the Soviet launch, they questioned him as to whether the US should protest given that by Sputnik’s overflight of the United States the Soviets had violated US sovereignty. He responded, “We were going to orbit their country weren’t we?”[40] His reply ended any Air Force-initiated protest of the Soviet launch.[41] Deputy Secretary of Defense Donald Quarles observed, “the Russians have done us a good turn, unintentionally, in establishing the concept of freedom of international space…Eisenhower…looked ahead and asked about a reconnaissance vehicle [satellite].”[42] During a news conference on 9 October 1957, Eisenhower hinted at his stalking-horse agenda when questioned regarding Sputnik. He stated, “From what they

​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.”[43]

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.[44] 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.[45]

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 ​opposition to the inclusion of the sovereignty issue in the ICAO’s work program.

The Air Force, represented by Daggett Howard, associate general counsel for international civil aviation affairs, and the Army argued that the main US interest in space was military. Howard, who later would become the first general counsel for the Federal Aviation Administration, indicated that it was problematic to have the ICAO undertake discussion of the sovereignty issue when the USSR-the only state to have launched a satellite-was not a member of the body.[46] The division approved a letter to David stating:

The United States believes that considerably more technical development and experience are needed before any international action on the problem you have raised should be undertaken. Rules and regulations or theories relating to international principles applicable to outer space evolved in this early stage could do little to further the work. They might put unnecessary and undesirable obstacles in its path.[47]

The division noted that, given that the predominant interest in outer space was not civil aviation, the ICAO was not the appropriate vehicle to undertake resolution of the sovereignty issue. The Legal Division stated that “it is too early to predict what methods for dealing with this problem may prove to be desirable.” Binaghi later advised David that he had sent the same letter to the United Kingdom (which never responded), France (which desired ICAO discussion), and Canada (which supported the US position but felt the United Nations was the appropriate vehicle). While noting that other countries desired an ICAO discussion of the sovereignty issue, Binaghi indicated an understanding of the US position and agreed to delay any further discussion of the subject until the ICAO’s next session.[48]

Subsequently, in a letter to Henry T. Snowden, chief, Aviation Division, Department of State, David agreed that there was little practicality in the ICAO studying the space problems at this time, but pointed out that the United States could not “count on keeping ICAO’s head in the sand on this issue. A more realistic attitude would be to prepare for ICAO consideration of the subject and to develop a positive approach as to how we want to have this done.”[49] Later the ICAO discussed the subject of outer space and agreed that it had authority to ​conduct studies of the subject matter. However, the ICAO took no formal action.

Daggett Howard and Secretary of the Air Force James Douglas (1958). Howard represented the Air Force at International Civil Aviation Organization meetings to discuss sovereignty issues in outer space. He became the general counsel of the Federal Aviation Administration.

In January 1958 the ACC Legal Division met with David to consider past and future ICAO discussions regarding outer space. David enumerated the reasons why he expected the ICAO to reverse direction and eventually take up the issue. During the meeting, the Air Force was the most vociferous opponent of any shift in the US position. Howard again forcefully represented the Air Force point of view that efforts to develop outer space law should not be adopted before any actual operations that such laws would be intended to govern had begun. Hereiterated that the main issues regarding outer space involved “national defense and military type questions.”

Howard asserted that the ICAO was an inappropriate vehicle for discussing the issue since the Soviets were not members of the ICAO. He argued that it would be dangerous for the free world to adopt restrictionson its own space activities without the Eastern bloc’s participation. Since ​the Soviet bloc had yet to agree on issues impacting airspace, Howard maintained that there was no need to do for outer space what had yet to be done for airspace. Nonetheless, he argued that the ICAO could not held at bay indefinitely. He argued that from a negotiating standpoint, it was stronger to take a firm negative position rather than open the door slightly to discussions, which when once begun, likely could not be contained. David indicated agreement with the Air Force position but noted that the arguments given by the Air Force had not persuaded other ICAO council members.

Finally, Howard argued that President Eisenhower’s pronouncement that the UN and not the ICAO should consider the issues surrounding the use of outer space could serve to delay ICAO action on the issue. David agreed that if the issue could be more firmly planted at the UN, the ICAO could be easily dissuaded, and he acknowledged that he understood that the ACC Legal Division essentially sided with the Air Force position. The Legal Division then directed that the State Department, with assistance from the Air Force, prepare a new set of instructions. The instructions would be used by embassies in ICAO Council countries to support the US position of avoiding ICAO discussion of outer space law.[50]

Even though the Air Force had succeeded in keeping outer space law questions off the ICAO agenda and in general had effectively stalled any resolution of outer space law issues, by mid-1958 “the magnitude and variety of these [space law] studies moved several well-known American jurists to remark that the law of space, instead of lagging behind the astronauts as some lawyers fear, is threatening to outfly the attraction of the earth’s gravity.”[51] State Department officials realized that some guidance was needed for its delegation at the UN.[52]

At this time, State Department legal adviser Loftus Becker proposed a presidential proclamation recognizing that reconnaissance satellites were in accord with international law so long as they did not interfere with terrestrial activity. Hancock expressed his concerns about this wording directly to Becker. Hancock indicated no problem with “snoopniks,” but he did question whether the breadth of the proclamation might preclude US objections to future satellites interfering with communication transmissions or weather operations. Hancock asked that Becker confine the proposed proclamation to projects that were part of the IGY. Hancock reasoned that, by following his advice, the US could still contribute to establishing the thrust of the proclamation as a principle of international ​law without being bound by a premature, unqualified proposition whose consequences were unforeseeable. Hancock did not oppose banning satellites designed for “weapons purposes” as long as the language clearly prohibited any satellites that interfered with any terrestrial activity.[53]

Hancock was not alone in the Air Force in expressing reservations about Becker’s proposed proclamation. However, it is not clear that the concerns of the Air Doctrine Branch, which were raised with the director of plans, were made known outside the Air Force.[54] In response to Becker’s 3 December draft memorandum for the secretary of state, the DOD assistant general counsel for international affairs, Monroe Leigh, wrote to Becker. Leigh stated that “the proposed proclamation is not as guarded as it should be in order to take care of the interests of various Department of Defense programs.” Leigh felt that language excluding objects or vehicles “designed or equipped for weapons purposes” should be revised to prohibit vehicles “intended to inflict injury or damage.” Since the US satellite programs were in large part funded by the military, Leigh noted that without his revision Becker’s language would create “an almost irrebuttable presumption” that the projects were being carried out for “weapons purposes.” Leigh opposed using the law of the high seas as an analogy for developing the law of outer space. Becker included Hancock’s IGY proposal and removed the “designed for weapons purposes” language from the draft proclamation.[55] Ironically, just before the US issued the proclamation, East Germany protested the orbiting of US military reconnaissance satellites that were not IGY affiliated. The proclamation was never issued.[56]

The Air Force position and now the US position as established by the ACC and its Legal Division-that ICAO consideration of outer space was premature-remained constant throughout 1958. Eventually, the forum for discussion of outer space issues shifted from the ICAO to the UN. As a result, and in large part due to strong Air Force urging, the United States had successfully deflected ICAO discussion of the sovereignty issue. As early as 1959, the UN first considered and identified the question of the definition of outer space as a legal problem. In 1959, in accord with US policy, the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) concluded that a determination of precise limits for ​airspace and outer space was not a problem requiring priority attention. As recently as 1985, the UN (with the ICAO monitoring the progress) again unsuccessfully attempted to define outer space. The issue still remains on the agenda of the Legal Subcommittee of the UN Committee on Peaceful Uses of Outer Space. To date the UN has not defined outer space nor resolved the concomitant sovereignty issue. Given that the delimitation issue is inextricably tied to the sovereignty issue, as long as the Bogotá Declaration continues under discussion, the delimitation issue will remain a hot topic.

Project RAND: Supporting the Air Force Position

Sputniks I and II caused a change in the “discussion of the character of space law and affected the quantity but not the quality of legal writing”; the emphasis of space law discussions “shifted toward a more realistic approach.”[57] Apparently Leon Lipson, when making this statement, was not aware of the ongoing discussions being held at the ACC and within the National Security Council (NSC). Contrary to Lipson’s October 1959 assertion, US policy making at the ACC and NSC with respect to outer space law was indeed realistic during the 1950s.

Due in part to Sputnik and the growing pressure on the ICAO to address the issue of outer space law, the Air Force recognized that it needed an in-depth analysis of these issues. The Air Force understood the need for this study even though it had been instrumental in successfully delaying the ICAO’s consideration of a convention on outer space law. In 1957, at the request of the Air Staff, Project RAND published preliminary findings and recommendations in an interim report entitled “Some Implications for US National Security of Activities in Outer Space.” The premise of the RAND study was that the US “would soon have to take a position publicly on questions of sovereignty and associated legal rights and privileges in regard to the use of outer space by nations.” The conclusion and recommendations of Project RAND were

Considerations of international law as such ought not now to occupy a major place in the determination of US policies affecting activities by nations in outer space. Existing legal rules do not necessarily require or forbid any specific activities of the type that we are likely to contemplate in outer space; the law of outer space has still to be evolved; the United States should ​determine what space policies and activities are desirable on other grounds before asking whether they violate old legal rules or require new ones.

Political and psychological measures should be prepared for the contingency of continued Soviet successes in space.

Efforts should be made to offset Russia’s claims that it stands only for peace while the US wants war.

The disclosure of news about space activities by the US can be planned to restore confidence abroad in US statements and to further US policy objectives.

To achieve the most favorable political and psychological effects from US activities in space and effectively to frustrate Soviet objectives requires planning and coordination at the highest levels of government.[58]

The RAND report further noted that the initial questions posed concerned “space law,” “sovereignty,” and associated questions of international law. RAND’s conclusions were similar to what the Air Force had been articulating at the ACC, namely, that “the legal approach to developing national policies on space matters is not the only, or even the principal, relevant approach.” RAND observed that the most important conclusion was that “considerations of international law as such ought not now to occupy a major place in the determination of US policies affecting activities by nations in outer space.” The study suggested that the United States determine what space activities or policies were desired on other grounds before asking if the activities or policies violated old legal rules or required new ones.[59] Finally, the Project RAND report asserted that at the time Sputnik was launched, activities in outer space were not covered by existing international law.[60]

Subsequent to the RAND report, Assistant Secretary of Defense for International Security Affairs Mansfield D. Sprague[61] circulated an outline entitled “Some Elements Requiring Consideration in Formulating a National Policy on Outer Space.” Its basic thrust was consistent with the RAND study, stating that “there is a real danger that we may harm ourselves by too early commitments, before the full implications of space ​

potentials are known. Our policy and national interest should be permitted to develop first: the law, and commitments should follow, and be consonant with the former.”[62] However, the outline did note that with respect to the principle of freedom of space that “we must evolve a workable theory of international law” on this problem.[63]

Whether space law should be codified remained an issue. In May 1958, during testimony before the Senate Special Committee on Space and Astronautics, Department of State legal adviser Loftus Becker, echoing what the Air Force had first advised, reiterated US policy.

It has been felt that the soundest way to progress in the extremely complex field of the law is by means of specific decisions on specific questions presented by specific fact situation …Moreover, there are very great risks in attempting to transmute a body of law based upon one determined set of facts into a body of law with respect to which the basic facts have not been determined.[64]

Accordingly, Becker indicated the State Department was “inclined to view with great reserve” codification of outer space law.[65]

In March 1958, Air Force chief of staff Gen Thomas D. White publicly opposed the setting of any boundaries between air and outer space. General White articulated an air-space continuum (aerospace) doctrine that “it should be recognized that there is no division, per se, between the two. For all practical purposes air and space merge, forming a continuous and indivisible field of operations.”[66] Also in the spring of 1958, the assistant deputy chief of staff for plans and programs directed that the Air Doctrine Branch complete a second sovereignty study for Air Force “eyes only,” regarding the feasibility of international law for space and its effects on military space programs. The Air Doctrine Branch, Air Policy Division, Directorate of Plans, DCS for Plans and Programs, circulated the study to the Air Staff on 22 August 1958. The study-prepared with the advice and assistance of all interested headquarters agencies, the Air University (AU), and RAND-was circulated among Headquarters USAF offices in October.[67] Given that an earlier published AU study was “divergent” from the opinions of the Air Staff, the Air Doctrine Branch recommended any further studies incorporating the opinions of both be held in abeyance pending completion of the RAND study, which had

​earlier been circulated in preliminary form.[68] The Air Doctrine Branch study group members recommended that their conclusions form the basis for Air Force policy on the question of sovereignty over outer space.[69]

In February 1959 General White reiterated the continuum doctrine in testimony before the House Committee on Science and Astronautics when he stated, “Since there is no dividing line, no natural barrier separating these two areas (air and space), there can be no operational boundary between them. Thus air and space comprise a single continuous operational field in which the Air Force must continue to function. The area is aerospace.”[70] Because he used the term aerospace, General White received some sharp criticism from members of the other services, in the press, and from Congress. He never retracted the term and the criticism eventually subsided. Clearly, the Air Force had dug in its heels on defining where outer space began. While recognizing that international conventions regarding outer space law might be forth-coming the Air Force was not, about to encourage their adoption.

Gen Thomas D. White. As chief of staff of the Air Force he coined the term aerospace doctrine.

The struggle between those desiring to see the development of outer space law based on custom and precedent and those seeking resolution ​

through limited international agreements continued well into the 1960s. The proponents of the latter, generally jurists and high-level government officials, perceived that eventually “a formal legal code embracing large segments of space activity” could and should be adopted immediately. The proponents of the former approach continued to argue that more scientific facts were needed before decisions could be made and national security might be compromised as a result of such ignorance. These proponents were generally midlevel US government officials.[71]

  1. ↑ According to the Military Air Transport Service (MATS) histroy for January-June 1955, the Air Coordinating Committee (ACC) and the Airforce had a close working relationship. The ACC was eventually composed of representaives of the Department of State, Air Force, Post office, Navy, and Commerce as well as the Civil Areonautics Boats. It was tasked with assuring that the United States acheive "segments of the fedral executive branch to develop and present an integrated policy on the economic, technical legal and diplomatic problems relative to the production and operation of civil and military aircraft in foreign and domestic flight" Wlater H. Wager described the ACC as "holding the key to the United States air policy" and as being an effective instrument for the formulation of policy because "it works." Wager, "The Air Coordinating Commitee," Air University Quarterly Review 2, no. 4 (Spring 1949)
  2. ↑ Lovett, who would eventually become secretary of defense, had served since 1942 on the War Aviation Committee, the forerunner for the ACC, along with the assistant secretaries for air of the Navy and Commerce Departments and the chairman of the Civil Aeronautics Board. See Wager, 18-19.
  3. ↑ Kenneth C. Royall, under secretary of war, to assistant secretary of war for air, Memorandum, subject: Air Coordinating Committee, 19 June 1946; and Wager, 21.
  4. ↑ Wager, 20.
  5. ↑ MATS History, vol. 1, January-June 1955, 4.
  6. ↑ ACC Document 51/29.13, 3 February 1948.
  7. ↑ Lt Col A. S. Raudabaugh to Col W. Bryte, memorandum, subject: US Matters-General Policy for US Compliance with and Implementation of the Convention and ICAO Decisions Thereunder, Reaffirmation of ACC 52/13, SPM 13 Amended, 4 February 1948.
  8. ↑ Lt Col Thomas C. Hollick, assistant executive, DCS/Plans and Operations, to Orders Section, Air Adjutant General, memorandum, subject: Reorganization of the Air Coordinating Committee, 1 December 1949.
  9. ↑ Helen Cross (AFOPD-PY-CA) to Colonels Bridges and Cage, memorandum, subject: Air Staff Representation on the Legal Division, ACC, 7 May 1952.
  10. ↑ John C. Cooper to Delbert W. Rentzel, chairman, Civil Aeronautics Board, 16 April 1952.
  11. ↑ Rothschild served concurrently as under secretary of commerce.
  12. ↑ Ronald C. Kinsey, secretary, Legal Division, memorandum, subject: Treatment of the Problem of Sovereignty and Associated Legal Privileges and Rights in Regard to the Use Of Outer Space by Nations, 7 March 1956 (hereafter Kinsey memo).
  13. ↑ Jenks was an associate of Cooper’s at the Institute of International Law, whose thesis proposed sovereignty as high as three hundred miles above the earth’s surface. In contrast, Haley appeared to argue that sovereignty extended into areas traversed by any proposed satellite.
  14. ↑ Ibid.
  15. ↑ ACC Legal Division, to ACC executive secretary, draft memorandum, subject: Legal Treatment of the Problem of Sovereignty and Associated Legal Privileges and Rights in Regard to the Use of “Outer Space” by Nations, 12 March 1956, 1. This memorandum summarizes Legal Division agreements reached at its 7 March 1956 meeting. Kinsey memo cited at note 11 is attached to the ACC memorandum dated 12 March 1956.
  16. ↑ News Release, L. C. Boussard, public information officer, International Civil Aviation Organization, Montreal, Canada, 4 April 1956.
  17. ↑ Maj Hamilton DeSaussure, memorandum for file, AFCJA, 7 May 1956.
  18. ↑ Joseph M. Goldsen and Leon S. Lipson, “Some Implications for US National Security of Activities in Outer Space-An Interim Report,” RM 2004 (Santa Monica, Calif.: RAND, 28 October 1957), 1.
  19. ↑ Sharp later became secretary of the Air Force, serving from 11 December 1959 to 20 January 1961.
  20. ↑ Dudley C. Sharp, assistant secretary of the Air Force, to Louis S. Rothschild, ACC chairman, memorandum, subject: Growing Interest in Possible International Convention on Use of “Outer Space” by Nations, 4 April 1956.
  21. ↑ Ibid., 2.
  22. ↑ John C. Cooper to Louis S. Rothschild, 9 April and 10 April 1956.
  23. ↑ Rothschild, chairman, Air Coordinating Committee, to Sharp, Air Force member, ACC, 12 April 1956.
  24. ↑ Col Paul W. Norton to Maj Gen Richard C. Lindsay, memorandum, subject: Growing Interest in Possible International Convention on Use of “Outer Space” by Nations, 9 May 1956.
  25. ↑ Author’s notes no oral interviews with Will H. Carroll and Maj Hamilton DeSaussure.
  26. ↑ Goldsen and Lipson, 2.
  27. ↑ Report and Minutes of the Legal Commission Document, 1956 International Civil Aviation Organization 7712, A10-LE/5, 6.
  28. ↑ Annual Report to the President, Air Coordinating Committee, 1956.
  29. ↑ “Text of President Eisenhower’s Annual Message to Congress on the State of the Union,” New York Times, 11 January 1957.
  30. ↑ Maj Howard J. Neumann, “Outer Space and the Soviet Union,” Air Intelligence Report, 18 February 1957, 2.
  31. ↑ Ibid., 7.
  32. ↑ Convention on International Civil Aviation.
  33. ↑ The 1919 Paris Convention (International Convention for Air Navigation) addressed International regulation of civilian aerial navigation. It established the International Commission for Aerial Navigation, which was superseded in 1947 by the ICAO.
  34. ↑ Ibid., 10.
  35. ↑ Ibid., 11.
  36. ↑ Col T. J. Dayharsh to Howard E. Hensleigh, DOD assistant general counsel (international affairs), memorandum, subject: Canadian Understanding of United States Inter-Continental Ballistic Missile Plans as They Concern Canada, 12 September 1957.
  37. ↑ Carroll, 2.
  38. ↑ As noted earlier, by the mid-1940s, there was already significant interservice rivalry seeking to capture the space program. Indicative that this rivalry continued well into the 1950s. Air Force vice chief of staff General LeMay would state on 17 March 1959 that “while recognizing Army and Navy interest in aerospace projects, we would seek to limit their participation to a coordinating role.”
  39. ↑ Ibid., 2-3.
  40. ↑ Ibid., 3.
  41. ↑ General LeMay’s position was clearly in accord with Eisenhower’s thinking. Whether General LeMay was advised as to the stalking-horse strategy or separately came to the same conclusion is unknown. If he had been advised, General LeMay apparently had not shared that insight with others in the Air Force such as Generals Donald L. Putt and Richard M. Montgomery, both of whom, as discussed below, took much different positions.
  42. ↑ R Cargill Hall, “Origins of US Space Policy: Eisenhower, Open Skies, and Freedom of Space,” Colloquy (December 1993), 23. Walter A. McDougall, The Heavens and the Earth: A Political History of the Space Age (New York: Basic Books. 1985), 134.
  43. ↑ 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.
  44. ↑ 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.
  45. ↑ 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.
  46. ↑ Minutes, 74th Meeting, Legal Division, ACC, 8 November 1957, Agenda Item 1 -ICAO Matters-Treatment of the Problem of Sovereignty and Associated Legal Privileges and Rights in Regard to Use of “Outer Space” by Nations (LD Memo 18-57), 2-4.
  47. ↑ William E. Neumeyer, ACC executive secretary, to Nelson David, US representative to ICAO, teletype, 13 November 1957. Attached to Kinsey to ACC Legal Division members, memorandum (LD 18A-57), subject: ICAO Matters-Treatment of the Problem of Sovereignty and Associated Legal Privileges and Rights in Regard to the Use of “Outer Space” by Nations, 14 November 1957.
  48. ↑ Nelson David, US representative to ICAO, memorandum of telephone conversation with Alberta Colclaser, State Department representative to ACC Legal Division, and Joan Gravatte, 22 November 1957. Attached to Kinsey to Legal Division members, memorandum (LD 186-57), subject: ICAO Matters-Treatment of the Problem of Sovereignty and Associated Legal Privileges and Rights in Regard to the Use of “Outer Space” by Nations, 26 November 1957.
  49. ↑ Nelson David to Henry T. Snowden, chief, Aviation Division, Department of State, 23 November 1957.
  50. ↑ Approved minutes, 75th Meeting of ACC Legal Division, Department of State, 13 January 1958, Agenda Item I, ICAO Matters-Treatment of the Problem of Sovereignty and Associated Legal Privileges and Rights in Regard to the Use of “Outer Space” by Nations.
  51. ↑ M. S. McDougal and L. Lipson, “Perspectives for a Law of Space,” American Journal of International Law 52, no. 3 (July 1958): 407, cited in R. Cargill Hall, “The International Legal Problems in Space Exploration, An Analytical Review” (master’s thesis, California State University at San Jose, June 1966), 3.
  52. ↑ Draft recommendation to [Joseph] Sisco, Department of State, subject: United Nations Consideration of Outer Space Control Proposals, 20 November 1958, attached to Loftus Becker to William W. Hancock, transmittal memorandum, 28 November 1958.
  53. ↑ Hancock to Becker, memorandum, subject: United States Declaration on NonInterfering Space Objects, 1 December 1958.
  54. ↑ History, Directorate of Plans, Deputy Chief of Staff, Plans and Programs, HQ USAF, vol. 17, 1 July-31 December 1958, 168. (Hereafter History, DCS/Plans and Programs.)
  55. ↑ Monroe Leigh to Becker, memorandum, subject: Legal Status of Non-Interfering Objects, 11 December 1958.
  56. ↑ By late 1958, the position advocated by the US Air Force of not encouraging the passage of international conventions was more in accord with the position advocated by the USSR than with the US Department of State presumably because both the Air Force and the USSR were more interested in allowing technology to develop.
  57. ↑ Leon Lipson, discussion leader, Chapter III, “Some Problems of the Near Future and Possible Approaches,” 5 May 1960, 79, quoted in Joseph M. Goldsen, “International Political Implications of Activities in Outer Space: A Report of a Conference, October 22-23, 1959,” R-0362-RC, Santa Monica, Calif., RAND.
  58. ↑ Goldsen and Lipson, vi.
  59. ↑ Ibid., vi, 5-6.
  60. ↑ Ibid., 31-37.
  61. ↑ Sprague had been an active member of the panel that was responsible for the Gaither Report.
  62. ↑ Outline, “Some Elements Requiring Consideration in Formulating a National Policy on Outer Space,” 6, attachment to Mansfield D. Sprague, assistant secretary of defense, to secretary of the Air Force et al., memorandum, subject: Proposal for a National Policy on Outer Space, 25 February 1958.
  63. ↑ Ibid.
  64. ↑ Testimony, Loftus E. Becker, Department of State legal adviser, to Special Senate Committee on Space and Astronautics, 13 May 1958, 18. Attached to Meeker to Monroe Leigh, transmittal letter, 16 May 1958.
  65. ↑ Ibid.
  66. ↑ Gen Thomas D. White, “Air And Space Are Indivisible,” Air Force Magazine, March 1958, 41; and preface to “Missiles and the Race toward Space,” The United States Air Force Report on the Ballistic Missile, 1958, 22. General White’s continuum statement certainly impacted the delimitation issue. However, the focus of his statement must also have been the effort of the Air Force to obtain or retain the aerospace function as part of the on-going roles and missions discussions taking place within DOD.
  67. ↑ Bowen, 185; and History, DCS/Plans and Programs, 166-67.
  68. ↑ For a detailed extract of the Air Doctrine Branch study conclusions, see appendix B.
  69. ↑ Staff Study, Air Doctrine Branch, 8 October 1958, 8-10.
  70. ↑ Testimony, Gen Thomas D. White, chief of staff, USAF, Hearings before House Committee on Science and Astronautics, Missile Development and Space Sciences, 86th Cong., 1st sess., 73-74 cited in “Future Air Force Space Policy and Objectives,” AF/XO study, July 1977, 13.
  71. ↑ Hall, “Legal Problems,” 15, 136-37.
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