First Colloquium on the Law of Outer Space: The Hague 1958 Proceedings

133 Pages·1959·17.088 MB·English

by  A.G. Haley, Welf Heinrich Prince of Hannover

FIRST COLLOQUIUM
ON
THE LAW OF OUTER SPACE
THE HAGUE 1958
PROCEEDINGS
EDITED BY
ANDREW G. HALEY
PRESIDENT, INTERNATIONAL ASTRONAUTICAL FEDERATION
WASHINGTON D.C. • U.S.A.
AND
DR. WELF HEINRICH PRINCE OF HANOVER
FRANKFURf A.M., GERMANY
SPRINGER-VERLAG WIEN GMBH . 1959
FIRST COLLOQUIUM
ON
THE LAW OF OUTER SPACE
THE HAGUE 1958
PROCEEDINGS
EDITED BY
ANDREW G. HALEY
PRESIDENT, INTBRNATIONAL ASTRONAUTICAL FEDERATION
WASHINGTON D. C., U. S. A.
AND
DR. WELF HEINRICH PRINCE OF HANOVER
FRANKFURT A.M., GERMANY
Springer-Verlag Wien GmbH 1959
ISBN 978-3-211-80509-1 ISBN 978-3-7091-4414-5 (eBook)
DOl 10.1007/978-3-7091-4414-5
All rights reserved
This book, or parts thereof, may not be reproduced
in any form (including photostatic or microfilm form)
without permission of the publishers
Foreword
The concept of the International Astronautical Federation Colloquium on
Space Law evolved from conversations between the undersigned during the course
of a lecture tour of American Universities which we undertook in the Fall of 1957,
and at subsequent meetings in Europe. Lectures on "The Law of Outer Space"
were given at the Universities of Princeton, Detroit, Chicago, Michigan, North.
western, Wisconsin, Minnesota, Montana, Montana State, Gonzaga, Washington,
California (Berkeley), California (UCLA), Utah, Colorado, St. Louis, Washington
(St. Louis), Harvard, Georgetown, American, Maryland, and so on; and in Europe
by one or the other of your editors at the Universities of Paris, Stockholm, Copen.
hagen, Berlin, Munich, Stuttgart, Madrid, Lisbon, Belgrade, Prague, Warsaw,
Moscow, Leningrad, The Evangelical Academy at Loccum, and so on; and before
numerous learned societies and many technical institutes and groups.
The attendance at these lectures pointed up the profound interest of world·
renowned teachers and practicing jurists, on the one hand; and thousands of
students and members of the public, on the other hand, in the subject of the law
of outer space. The intimate importance of space jurisprudence to thinking men,
and especially experts in the social sciences, was demonstrated beyond
question.
Throughout the world there are many local committees and local centers
of learning supporting space law studies and investigations-but there was
no concerted international effort devoted to this subject as a special effort of
mankind. We decided to call the First Colloquium on Space Law and it was
obvious that one of the most appropriate centers in the world would be the
Rolzaal, in The Hague, a birthplace of human rights and a city rich in the tradition
of international arbitration and adjudication-and indeed the world center of
such activities.
As will be seen from this volume of Proceedings, the First Colloquium was
well attended and many excellent papers were presented. During the course of
the Colloquium the participants voted to establish a Permanent Legal Committee
of the International Astronautical Federation-an action which was later ratified
by the Council of the Federation. In cooperation with the Member Societies of
the International Astronautical Federation there has been assembled the Perma·
nent Legal Committee, which comprises many leading jurists and social scientists
from all parts of the world. The current membership of this Committee appears
as an appendix to these Proceedings.
IV Foreword
It is expected that the Second Colloquium, which will be held in London at
Lincoln's Inn (of hallowed fame) on September 4, 1959, will develop ideas and legal
formulations also of outstanding merit and interest.
We take this opportunity to express our appreciation and thanks to Mrs. BEN
SANDERS for having made local arrangements in The Hague; to Dr. and Mrs.
J. M. J. Kooy and Mrs. A. F. P. VOLTEN for their great and continuing efforts
on behalf of the Colloquium; to Springer-Verlag for its efforts in arranging for
the publication of these Proceedings; and to all those good and serious partici
pants who actually were the "substance" of the Colloquium.
April 1959
Andrew G. Haley
Dr. Well Heinrich Prince of Hanover
Contents
Rauchhaupt, Fr. W. von: Introduction. A Light from the Past to Show Up the
Legal Problems of Our Age of Space .................................... 1
Haley, A. G.: Space Age Presents Immediate Legal Problems ................ 5
Hanover, WeIf Heinrich Prince of: Problems in Establishing a Legal Boundary
between Air Space and Space .......................................... 28
Alessandrone-Gambardella, V.: Contribution ............................... 31
Bevilacqua, L. de Gonzaga: A Contribution to the Problem of Space Law Estab.
lishing a Technical and Practical Limit to Political Sovereignty in Space .... 33
Cocca, A. A.: Principles for a Declaration with Reference to the Legal Nature
of the Moon ......................................................... 34
Cooper, J. C.: The Problem of a Definition of "Air Space" ................... 38
Feldman, G. J.: An American View of Jurisdiction in Outer Space ............ 45
Fulton, J. G.: A Definitive Study of the Concept and Scientific Strategy of Outer
Space. The Challenge to all Nations to Support a Just System of Space Law. 51
Galloway, E.: The Community of Law and Science. . . . . . . . . . . . . . . . . . . . . . . . . . 59
Gatland, K. W.: Contribution ............................................ 63
Gerlach, F.: Contribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 66
Gorove, S.: On the Threshold of Space: Toward a Cosmic Law. Problems of the
Upward Extent of Sovereignty .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Herr, D. L.: Technical Proposals ......................................... 77
Homburg, R.: Comments ................................................ 79
Jastrow, R.: Definition of Air Space ...................................... 82
Keating, K. B.: Space Law and the Fourth Dimension of Our Age ............ 83
Pepin, E.: Observations ................................................. 91
Pereira, F. A.: The Internationalization of Outer Space and the Unification of
World Astronautical Strategy; the Ecumenical Nature of Astronautics ...... 93
Plakidis, S.: The Hellenic Contribution in Astronautics ...................... 96
Rivoire, J.: Design for a Law of Space. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Bode-Verschoor, I. H. Ph. de: The Responsibility of States for the Damage
Caused by Launched Space-Bodies ..................................... 103
Smirnoff, M.: The Need for a New System ofNo rms for Space Law and the Danger
of Conflict with the Terms of the Chicago Convention ..................... 105
Strughold, H.: Definitions and Subdivisions of Space. Bioastronautical Aspect. 110
Tuneld, B.: Remarks .................................................... 114
Wolczek, 0.: Remarks .................................................. 115
Yeager, Ph. B.: A Code for a New Frontier ................................ 116
Members of The Permanent Legal Committee of the International Astronautical
Federation .......................................................... 122
Introduction
A Light from the Past to Show Up the Legal Problems of
Our Age of Space
By
Fr. W. von Rauchhauptl
In our present situation we are reminded to some extent of the situation
created by the successful adventures of CHRISTOPHER COLUMBUS in the year 1492.
Then, new continents which had hitherto only been dimly imagined were dis
covered and became realities; and today we too have found new worlds and are
groping eagerly towards them.
What were the consequences of the adventures of COLUMBUS for international
law in the 15th century 1 There were no precedents to go by, and it was there
fore necessary to invent and formulate new law to meet the special situation
which had arisen, to discuss it-and either to accept or reject it.
I
In 15th century Spain the task of finding the best solutions in this new field
fell to the professors of theology and canon law. One of their problems was to
decide whether a war was just or unjust. A war of defence, for example, or in
reaction to a violation of the law by another State was a just war, a war of
aggression, on the other hand, was an unjust war. To which group, then,
should belong the warlike actions which were being undertaken in order to win
over the native heathens to the true religion of Christianity 1
There were two schools of thought on this problem in Spain. The first, that
of the Dominicans, began with FRANCISCO DE VITORIA (1492/93-1546). His
main work, De Indis recenter inventis et de jure belli hisparwrum in barbaros
relectiones (1539), as well as many others on the subject which were written later,
answered this question by starting with the assumption that hostilities were
already going on, and that a continuation of the war was justified in order to
win a final state of peace. The law to be applied here was that of jus gentium, a
law of nature which already existed in the ordinary regulated life of human society.
The Dominicans were succeeded by the Jesuits, an order founded in 1534
to oppose the Protestant reformation of LUTHER since 1517. Their most famous
jurist was FRANCISCO SUAREZ (1548-1617), and his principle work, De legibus
ac Deo legislatore (1613), is a testimony to his deeply rooted religious and philo
sophic thinking and methods. He and his followers found that there was already
a great deal of useful legal material available, and they had the task of inter
preting it from a critical standpoint and to try to give it a broader application
and a more subtle aim.
1 University of Heidelberg, Heidelberg, Germany.
1st Space-Law Colloquium
2 FR. VV.VON RAUCHHAUPT:
It was a tragic fate that these so excellently qualified scientific schools fell
into oblivion so remarkably quickly. The main reasons for this were the devas
tations of the 30 years religious war, and the birth and growth of Rationalism
with its antagonism to the church. But a recent re-evaluation of their merits was
begun in the USA with the pioneer and research work of Professor JAMES BROWN
SCOTT (1866-1943) in his edition ofthe Classics ofInternational Law (17 volumes,
1911-1954); in Germany with a celebrated article by Professor JOSEI!' KOHLER in
Berlin on the Spanish masters of the law of nature during the 16th and 17th cen
turies, which included many quotations from their works (in "Archiv fUr Rechts
und Wirtschaftsphilosophie", 1916-1917); and finally in Spain with the foundation
of the "Asociaci6n Francisco de Vitoria" at Salamanca and their excellent Year
books ("Anuarios") published since 1926, as well as the numerous publications
since 1948 of the "Revista Espanola de Derecho Internacional" , an association
of professors in this branch of science. Similar researches have also been carried
out in Latin America.
Towards the end of the Catholic Spanish law schools previously mentioned,
the Dutchman HUGO GROTIUS (1583-1645), a reformed protestant, appeared
on the scene. But he was principally a practical jurist, and only in later life
did he become an able writer of theological essays and a religious poet. He is
accepted to be the direct successor of the Spanish internationalists and frequently
quotes them in his works. His most important works are: De jure praedae com
mentarius written in 1604-1605 (but only published in 1869); De mare libero in
1608-1609 (re-discovered in 1864), which is attacked in the Englishman
JOHN SELDEN'S Mare clausum (1635). His principle book is entitled De jure belli
ac pacis, which was first published in Paris in 1624-1625 (while in exile). It
is still regarded as the basic source of European and American Public Inter
national Law, and has grown to become a kind of "legal bible" in all questions
of international law. With GROTIUS, too, the emphasis remains on the law of
war, but serving solely as a means of obtaining the more pleasant condition of
a final peace, which in turn would provide conditions under which an inter
national and lawful community could be developed without hindrance.
Since the signing of the Versailles Peace Treaty of 1919-1920, there has been
a change in the relative importance of peace and war. From then onwards, the
cause of peace is to be served, and war, with only a few clearly defined exceptions,
is to be outlawed and abolished. This conception seemed to meet the loftiest
ideal of Public International Law. A further development could only be envisaged
in a broader application of case law.
II
Contrary to these expectations, the Second World War, with its unlimited
use of initiative, power and wealth, created two new and extremely powerful
weapons, the atomic bomb and the terrifically powerful missiles beginning with
the German V2, culminating in the satellites which rotate around the earth
today, may soon be able to reach the Moon, and even further into space. The
United States professor of Public International Law, GORDON DEAN, President
of the Atomic Energy Commission, published his very considerable knowledge
as a jurist and as an expert on the manufacture of atomic energy in an excellent
book which was also published in Germany in 1955 under the title: Atom-WaUen
oder Isotope? He advocated the abolition of atomic war and urged the wide-
A Light from the Past 3
spread use of the Isotope and its powerful rays in the fight against cancer. The
world suffered a great loss when he met such an untimely death in an aeroplane
accident (1958).
As yet, we have no general law regarding these new lethal weapons or the
other discoveries of atomic physics which are potential promoters of commerce
and welfare. The jurists of today are facing a situation similar to that which
confronted the Spanish theologians of old after the discovery of America and the
redemption of many heathen souls. In those days they had to create new Jaw
arbitrarily on the basis of the principles of ethics, practical reasoning and legal
common sense, and in the hope of God's blessing. The jurists of today will have to
do likewise, and indeed they are already doing this in the light of their own nation
allaw. There is still a considerable difference in opinion, owing largely to the many
startling developments in science, and there has been little progress in agreeing
on any legal conclusions. This is readily understandable with regard to some of
the basic problems; for example: Should the sovereignty of a State extend above
its territories, and if so, how far should it extend 1 Satellites and rockets, with
their infinitely greater range, should they be considered to be national property,
and if so, is this right limited to a certain height 1 Are they to be classed as "col
onies" or independent objects 1 Or as primitive States on their own, perhaps
masterless and without any purpose or aim 1 There are so many questions which
remain to be answered. For example: Who is the owner of a bullet fired across
a frontier or several frontiers from a distance, or for how long 1 Or who is the
owner of a satellite, especially when it cannot be recalled 1 Who is liable for dam
age caused or potential 1 Is anyone entitled to destroy it, or even obliged to
render a satellite harmless if it is out of control and is a potential threat to the
world as a whole 1
We sincerely hope that such academical and practical problems will be cor
rectly solved in time. The final solutions will probably be based on the law of
nature or even on divine law, and will inevitably be guided by legal logic. They
will form an extension of Public International Law in the highest moral sense,
the highest ethics of justice, and in the hope that they will find favour with
God. The term "Infinite" may have to be introduced into our earth-bound law.
In company with so many others, the International Astronautical Federation
at their recent congress at Amsterdam, and the Grotius-Stiftung in Munich,
Germany, with branches in 20 countries, are all moving in parallel directions
for the same purpose of furthering mankind and to give us the new International
Law we now need. At the lOth Anniversary Festival Session of the Grotius
Stiftung, President ANDREW G. H.ALEY and WELF HEINRICH PRINCE OF HAN
OVER gave lectures on air space and space law, and Professor E. A. KOROVIN
(Moscow) sent a paper on the conquest of the stratosphere and Public Inter
national Law. The most important factors are the moral values which are reliable
milestones towards World Peace and Order.
Professor FRIEDRICH WILHELM VON RAUCHHAUPT, LL.D., Ph.D., born 1881, h88
been teaching international law in Heidelberg University since 1922.
Besides a comprehensive system of international law and investigations into the
Christian origins of modern international law, Professor VON RAUCHHAUPT h88 mainly
contributed to the history of international law in the Spanish speaking World.
Consequently, Professor VON RAUCHHAUPT W88 elected honorary member of the
Law Faculties in Santiago de Chile and San Jose de Costa Rica, of the Real Academia
1*
4 FR. W. VON RAUCHHAUPT: A Light from the Past
de Jurisprudencia y Legislaci6n, and corresponding member of the Real Academia
de Ciencias Morales y Politicas in Madrid.
Being convinced that international law, in order to be generally complied with,
must be democratized, Professor VON RAUCHHAUPT joined the International Grotius
Foundation for the Popularization of International Law and became a member of
its German Committee.
On the Grotius Foundation's tenth anniversary, celebrated in Munich on August
28, 1958, Professor VON RAUCHHAUPT met President ANDREW G. HALEY, who, on
that occasion, spoke on "The Law of Outer Space."