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Aviation History
1958
1958 - 0415.PDF
FLIGHT, 28 March 1958 431 The Law of Mediaeval Space PREPARING THE WAY FOR PEACEFUL EXPLORATION BEYOND THE EARTH By HAROLD CAPLAN. D.C.Ae., A.M.I.Mech.E., A.F.R.A«.S. THERE was a time when the bosoms of loyal Englishmen(and women) might swell at the thought of intrepid Empire-builders rushing around the surface of the Earth planting Union Jacks in virgin soil for the honour of King and country.That pride has given place to a fear that outer space and the planets might soon be bristling with red stars, robot tanks andunwinking satellite eyes for Big Brother. Is this fear justified? Only the sweeping tide of advancing technology will providean answer to the technical feasibility of such ideas. But even if these plans are brought to maturity they should excite no fear.Our fears of such developments spring from the inherited traditions of political thought which equate control with power and owner-ship; and power with the desire for domination. There is nothing in these equations which springs solely from the conquest of outerspace. There is no evil in a military Earth satellite which did not exist before in an ICBM, an artillery shell, a knife or the handsof a homicidal maniac. These are old sores in human history. The fatal errors are the equations: —control = power power = domination or occupationdomination or occupation = ownership ownership = the right of autocratic dispositionthe right of autocratic disposition = total submission Statesmen bridge the gap from control to total submission with-out a second thought. So do generals. No other man is in a position to question the result, and yet all other men are the firstto be submerged by the consequences. This is not the time or the place to blame all wars on politicians and soldiers. But it is timeto pause for reflection on the brink of the Space Age, and to see whether the future use of outer space is to be helped or hinderedby the continued use of mediaeval concepts of national sovereignty. Science and the Law. The laws of mankind are the accretionsof generations of human thought and custom, slowly penetrated by scientific ideas. The laws of nature are gradually unfolded byrational men in successive ages. There has always been an abysmal lag between accepted law or morality (which may be known toa multitude) and accepted science, which in the past has been the privilege of a few. Conflicts are perpetual and of varyingseverity. The roundness of the Earth was once heresy. Even today, certain types of abnormal persons are regarded, with all the majestyof the law, as sane criminals fit only for incarceration or slaughter. Today science and technology have far outstripped the conventionsof law. Human artificial insemination poses legal problems of inheritance and marital offences which cannot yet be settled. Thephysicist's concept of action at a distance has no recognized parallel in law. The legal liabilities of those who conduct rain-makingexperiments are far from certain. The scope of anarchy and "crime" which may be committed with impunity in an aircraft. flying over the high seas is not defined by any law. And now, on the threshold of space, there is a danger that thisnew dimension of freedom will be fettered by outworn legal concepts of control and ownership. The Danger. Public international law was evolved from thecustom and good sense of men who could move about on the surface of the land and the sea, indulge in modest mining andbuilding operations and, later on, ascend a few miles into the air. Early ideas of ownership and possession of goods possibly precededthe ideas of national or racial sovereignty. The primitive notions of "might is right" and "occupation is ownership" lie just beneaththe surface of international politics even today. United Nations exists because we wish to discard the crude implications of thesecrude ideas. It fails to solve all the problems which arise because the primeval crudities still exist—aided by the relatively newforces of economic need and industrial potential—and reinforced by the terrifying principle that a State's sovereignty is an impreg-nable wall not to be breached except by special consent or war. National sovereignty is an invaluable principle for dividing thesurface of the Earth into economic or defence units. It becomes a dangerous disease of the mind when used to stifle individualliberty of thought or when it is used to project nationality from the surface of the Earth up into space itself. The die was cast in 1919 when, in the aftermath of the firstworld war, the European nations who joined in the Paris Con- vention granted to each other exclusive sovereignty in the airspaceabove their respective territories. For the modest heights which could be envisaged for aircraft of the then foreseeable future, thiswas not unreasonable. But, unfortunately, the same basic idea is now being used to extend the upper limits of sovereignty so asto trap the heedless satellites. ORIGINALLY published in "Potential," the magazine of the College ofAeronautics, Cranfield, this article has been revised for "Flight" by the author, who is assistant secretary of The British Aviation Insurance Co.,Ltd. The opinions expressed are the personal views of the author. The dangers have been stated by eminent writers1-2 who havepointed out that international air law "is essentially earthbound and land minded".2 Equally eminent writers such as ProfessorJ. C. Cooper3 at one time suggested that national sovereignty should be extended to altitudes at which some control can beexercised—and this obviously involves an expansion of sovereignty with each advance in technology. There is no body of law dealing with outer space but therehas arisen a great deal of legal literature on the subject, with a flimsy background given by international and national reactionsafter such minor excursions as the flights of high-altitude balloons. The number of articles reflects the progressive lawyer's earnestdesire to grapple with the opportunities afforded by science to create a legal system for the virgin space. It is perhaps the legalequivalent of the golden age of empire-building. The scientists have been relatively silent—not realising, perhaps, that their legalcolleagues can be indulging in such fantasies as the methods of establishing legal ownership of the Moon. The unexpected emergence of the first two artificial satellites onthe wrong side of the Atlantic has resulted in international dis- cussions for control of such objects being interlinked widi dis-armament talks in the often angry forum of United Nations. This underlies the lawyer's views that the matter should have beenresolved by a peaceful international agreement long ago. Unfor- tunately it may also persuade scientists and technologists thatthe political arguments which ensue are none of their business. Fortunately the satellites now circling have been allowed to doso without official protest from any subjacent nation. As Professor Cooper pointed out in a recent talk to the British Branch of theInternational Law Association4, this pay be the clearest indication for the future that the space in which the satellites travel is notregarded by any government as being within its sovereignty. The Present Situation. Those nations which subscribe to theChicago Convention of 1944 agree to respect each other's sovereignty in the airspace over their respective surface possessions.The U.S.S.R. and her terrestrial satellites have not joined this convention, although the U.S.S.R. has adopted a similar mode ofdescribing the aerial extent of her sovereignty.6 Some writers argue that "airspace" extends high as aerodynamic lift can begenerated; others suggest that airspace extends so far as particles of air exist. Only very rarely do legal writers seem to be aware6of the scientific difficulties implicit in these ideas. It is an attractive, rational idea to make the limits of terrestrialjurisdiction and sovereignty coincide with some apparent natural "boundaries" such as the upper "limit" of the atmosphere or ofaerodynamic lift.7 But in the last analysis the limits for jurisdic- tion will be arbitrary limits and it may save a great deal of timeand frustration in international discussions if this idea can be accepted as inevitable. For example, the limits of terrestrialsovereignty could be described very simply by the surface of an arbitrary sphere enveloping the Earth. The cost of expeditions to the Moon and other planets may bean unsuspected source of truly international co-operation (i.e., including Russia)—in which case it is easier to visualise jointcodes of conduct for human activities in the solar system. But if such a code of conduct is not achieved on a truly internationalbasis there is no reason why the familiar set of equations should not arise again: control = power=domination or occupation = ownership, etc. Anarchy in the solar system is an equally unattractive solution.Moreover, as Haley has pointed out,1 human beings may not be the only lawyers in space. Another equally eminent internationallawyer has said, "It is most desirable that jurisdiction over activi- ties in space beyond the atmosphere should be recognised to bevested in the United Nations and that legislative authority over activities beyond the atmosphere of the Earth should be exercisedby the General Assembly acting through or on the advice of an appropriately constituted body." Some Possibilities for the Future. The scientific co-operationwhich has created the IGY is capable of development for the needs of satellites and outer space. The machinery which drew up plansfor the IGY should be used without delay to draw up a code of conduct for human activities in space. The evolution of a code
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