Abstract
Though the law on the matter of outer space activity will be utterly different from the law in horizontal space and even from that of air space, any realistic approach, according to present experience, starts from the earth.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
G. Schwarzenberger: A Manual of International Law 4th ed. vol. I, p. 111, deems that damage caused by spacecraft in the territory of any other subject of international law is governed by the principle of international responsibility.
This position is unilateral, in view of the fact that space activity is not necessarily on the public law level. Furthermore, conditions of international responsibility may not be fulfilled, e.g. if there is no breach of an international duty or if such breach is unvoluntary, precluding the application of the principle.
See G. Schwarzenberger: ibid., pp. 163 and 168.
M. Sibert: Traité de Droit International Public I, 310.
P. Guggenheim: Traité de Droit International Public, II, 2 (but against the requirement of negligence, p. 49 seq.).
Clyde Eagleton: The Responsibility of States in International Law, 23.
Ch. De Visscher: La Résponsibilité des États, in Bibliotheca Visseriana, vol. II, 89 at 93.
Adolf Schule in Strupp-Schlochauer: Wörterbuch des Völkerrechts, V:o Delikt, Völkerrechtliches, 326, chiefly at pp. 336-337.
Ch.-Ch. Hyde: International Law chiefly as interpreted and applied by the United States, II, 886 seq.
L. Gould Wesley: An Introduction to International Law, 508.
L. Cavaré: Le Droit International Positif, II, 273.
It should also be pointed out that the application of the principle of international responsibility supposes the exhaustion of local remedies.
For history and status of international conventions on air law see: Julian G. Verplaetse: International Law in Vertical Space (1960), 22 seq.
The proposed rules do not state an exclusive solution. E.g. the Admiralty has jurisdiction as regards collisions between British ships in foreign inland waters and between foreign ships other than national ships in foreign waters. (Halsbury’s Laws of England 3rd ed. vol. 1, V:o Admiralty, n. 124, p. 62. Marsden’s Collisions at Sea, 10th ed. by K. C. Mc Guffie, 224-225). As to the law applicable it is always the maritime law as administered in England, though the liability depends, in some cases upon the law of the place where the collision occurs (Marsden’s Collisions at Sea, 10th ed. by Mc Guffie, 229 and 231).
Moreover, the proposed rules should be considered in the light of the aforementioned general principle of preponderant connexions. See the case Irma Mignon, a collision between two Norvegian ships in English territorial waters, decided by the Norvegian Hojesteret according to Norvegian law (Borum: Lovkonflikter, 3rd ed., 165).
For the X-15 and Dyna-Soar see the comment of Andrew G. Haley on the Report to the National Aeronautics and Space Administration on the Law of Outer Space, compiled by Professors Leon Lipson and Nicholas de B. Katzenbach.
Ch. S. Rhyne: The Legal Horizons of Space Use and Exploration. Address University of South Dakota Law School, 1958, seems to imply that all our existing law is clearly designed in terms of the earth’s atmosphere. There is much to be said in favor of this contention, since any human activity, up to now, is permeated by air. Activity outside atmosphere and attraction is a real novelty. E.g. what about real property in an environment where a man can carry a five story building on his hands?.
The argument—which need not be discussed here—is based on analogous arguments in matters of pollution or fallout. It should be stressed that, as ever, analogy is to be taken cum grano salis.
The United States and the United Kingdom have, on various occasions, established danger areas in the Pacific, when testing thermonuclear bombs. Pollution of the airspace and contamination of the sea were the two main arguments alleged against this practice. Proving grounds for missiles would not be so dangerous, unless the use of nuclear warheads give rise to the same uncontrollable pollution. At any rate, there was never a claim that such areas were under the exclusive control of the United States and the United Kingdom. This would be a clear violation of the principle of the freedom of the seas. The only point under discussion was the legality of the establishment of danger areas.
Some authors consider that the establishment of such areas does not infringe upon the freedom of the High Seas. Strange though it may appear for anyone not acquainted with the works of Grotius, they may rely on the father of the freedom of the seas, who never advocated a limitless liberty. He considered i.a. that sovereignty over a sea area could be acquired by stationing a fleet: Grotius: De Jure Belli ac Pacis, (Kelsey’s translation [1925] vol. II, 214). Other arguments adduced are the legality of naval vessels in formation, manoeuvres or exercises, restrictions in time of war (considering that cold war is not tantamount to peace), and the paramount factor of self defense. See: Myres Mc Dougal and Norbert A. Schlei: The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security in 64 Y.L.J. 1954–55, 649 and the authorities cited
Myres Mc Dougal and W. T. Burke: Crisis in the Law of the Sea: Community Perspectives v. National Egoism 67 Y.L.J. 1957–58, 539.
Mc Dougal, challenging the work of the International Law Commission and its absolutistic doctrine of freedom, argues for relativity, expansibility and, above all, reasonableness under community criteria.
See also: UN Conference on the Law of the Sea, Official Records vol. IV: Second Committee, High Seas, General Regime, A/Conf. 13/40, the opinion of the delegates of the United States (p. 15), Canada (p. 20), etc.
But there is weighty authority which considers that the Law of Nations relating to the High Seas as well as the law of humanity, and, in particular, the provisions of the United Nations charter and the Trust Agreement, prohibit the establishment of danger areas. See: Emanuel Margolis: The Hydrogen Bomb Experiments and International Law 64 Y.L.J. 1954–55, 529
G. Gidel: Les Explosions Nucléaires Expérimentales et la Liberté de la Haute Mer, in Fundamental Problems of International Law: Festschrift für J. Spiropoulos (1957), 191
Paul de la Pradelle: Les Frontières de l’Air, R.C.A. 1954. II. 117 at p. 147; Resolution of the UN Conference of the Law of the Sea, April 27, 1958, on the Report of the Second Committee in connexion with art. 2 of the Law of the High Seas, 52 A.J.I.L. 1958, 864, UN Doc. A/Conf 13/I. 56 reprinted in 38 Dep. State Bull. 1111 (1958) and special supplement to the I.C.L.Q. 1958
Herbert Krüger in Strupp-Schlochauer, I, 791, V:o Hohe See
Declaration of 21 American Republics at Panama in 1939 at the International Conference of American States, 1939–40, A.J.I.L. Supplement 1940, 17.
See also the delegates at the UN Conference on the Law of the Sea, Official Record vol. IV Second Committee, High Seas General Regime, A./Conf. 13/40: Ceylon (p. 14), Romania (p. 16), Bulgaria (p. 19), Czechoslovakia (24 and 45), Ukrainia (p. 31), Japan (p. 44, pointing out that all tests should be prohibited, since even those performed on the territorial sea or on land have an adverse effect on the High Seas).
More cautiously, there is also reluctance to accept A. and H. tests on the High Seas in Alison Reppy: The Grotian Doctrine of the Freedom of the Seas reappraised, 19 Fordham Law Rev. Dec. 1950, n:o 3, p. 243 (“act of doubtful validity and, therefore, if to be done, such explosion should only be permitted after due precautions had been taken to protect the rights of other users of the sea”, at p. 283).
Shigeru Oda: The Hydrogen Bomb Tests and International Law in Friedenswarte 1956, 126, who puts the question whether the Japanese Government consented to the designation of danger areas before the Bikini tests in 1954. He does not find any such concurrence nor does he consider its possible effect on legality. (It is submitted that such effect could never bear on the status of the High Seas but merely on the contractual relation of the United States and Japan.).
The question of liability arising out of the test is still unsettled. The United States paid Japan a lump sum—far below that requested by the Governement of Japan and the insurance assessment. The sum was paid—and, it would seem, accepted—as ex gratia, without reference to the question of legal liability: Oda: Art. cit. at p. 127.
As to the analogous cases of the A. and H. test sites, it has never been denied that proper warning was given through the establishment of danger areas. See: Shigeru Oda: Art cit. at p. 130 seq. For the area of Christmas Islands during the British tests: I.C.L.Q. 1958, 548.
No penalties were provided for entering the danger areas, the penalty being the danger itself. No conflict with air activity seems to have arisen during the tests.
See: Eugène Pépin: The Law of the Air and the Draft Articles concerning the Law of the Sea adopted by the International Law Commission at its Eight Session Preparatory Document n: o 4 in A/Gonf. 13/37 at p. 70.
John Taylor Murchison: The contiguous Air Space Zone in International Law (1955). Myres S. McDougal and Norbert A. Schlei: The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security 64 Y.L.J. (1954–55), 648 at p. 677 seq.
“Illustration of contiguous zones for security purposes in the missile age is indeed as accessible as the front page of the daily newspaper”. Myres S. McDougal and William T. Burke: Crisis in the Law of the Sea: Community Perspectives versus National Egoism, 67 Y.L.J. (1957–58) 539, at p. 583 note 152.
Cyril E. S. Horsford: Principles of International Law in Spaceflight. St Louis University Law Journal 1958, 70-78.
Analogy may be found in maritime and railroad transportation. The rules in matters of collisions between steamer and sailing vessels are to the point. United States and United Kingdom practice hold that a steam vessel must keep out of the way of a sailing vessel, when proceeding on a course involving the risk of collision. The rationale of the rule is that a steam vessel is more perfectly in command and more easily manoeuvered than a sailing vessel. That rule is nearly absolute and applies even when the steamer is encumbered with a heavy or unwieldy tow, though, in that case, negligence of the sailing vessel has sometimes been accounted for.
See the cases cited in Corpus Juris Secundum 15 V:o Collision, VI Steam Vessels and Sailing vessels; The English and Empire Digest 41, V:o Shipping and Navigation, Part XII, Collisions, p. 747 (f): Risk of Collision between Steamer and Sailing Vessel. Collision between a train and a motor vehicle shows another analogy. Here presumption of fault rests with the motor car. A train has priority on a fixed track and on private property. It is normally expected to proceed to a time schedule. Of course the engine driver must watch for the signals and take all reasonable steps. But railroad is not like a roadway and the motor car driver knows that the engine driver cannot have that full check that he must be expected to have. See: Lloyds Bank Lt v. British Transport Commission, C. A. Feb. 16, 1956, All E.R. 1956. III. 291; Hazell v. British Transport Commission Q.B.D. Nov. 29, 1957 All E.R. 1958. I. 116; Trznadel v. British Transport Commission, C.A. July 4, 1957, All E.R. 1957. III. 196; Also: Kemshead v. British Transport Commission 1958 I. All E.R. 119, C.A.
Again it should be stressed that analogy is a dangerous instrument. Our case is vastly different from the English steamship colliding on the oceans with an American sailing vessel (The Scotia US Sp. Ct. 1871, 14 Wall 170–189, 20 L. ed. 822) or even from the Dutch plane colliding with the roof of a truck (KLM v. Nederlandse, Antillen, C.A. Netherlands Antilles Jan. 12, 1954, I ATA Reports n:o 16, Antillaans Juristenblad 1954,60).
Cyril E. S. Horsford: Art. cit.; D. Goedhuis: Draft Report to the International Law Association, 1958, 10.
This paper was delivered when the author was informed of a strong minority scientific thinking, which would give a larger part to human judgement and responsibility in space travel. It is claimed that the astronaut would be able to use his own judgement in steering and should do so in view of the shortcomings of the computer system. See: Alexander Nyman: Man or Computer in Space in “Air Force and Space Digest” May, 1960.
It is clear that the terms of that opinion would modify the data on which this paper is based.
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 1961 Springer-Verlag Berlin Heidelberg
About this paper
Cite this paper
Verplaetse, J.G. (1961). Conflicts of Air- and Outer Space Law. In: Haley, A.G., Grönfors, K. (eds) XIth International Astronautical Congress Stockholm 1960 / XI. Internationaler Astronautischer Kongress / XIe Congrès International D’Astronautique. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-37770-3_16
Download citation
DOI: https://doi.org/10.1007/978-3-662-37770-3_16
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-662-37067-4
Online ISBN: 978-3-662-37770-3
eBook Packages: Springer Book Archive