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Reconnaissance Satellites: Legal Characterization and Possible Utilization for Peacekeeping Joseph R

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Reconnaissance Satellites: Legal Characterization and Possible Utilization for Peacekeeping Joseph R Reconnaissance Satellites: Legal Characterization and Possible Utilization for Peacekeeping Joseph R. Soraghan * Since 1957, outer space has been open to exploration by man. Perhaps predictably, space endeavors almost immediately included military activities. Although the world was technically "at peace" during the advent of space exploration, mistrust and fear of the military capabilities of opposite camps ran high. The desire of the world powers to gather intelligence information was extended to outer space, via the reconnaissance satellite." In January, 1967, the United States, the Soviet Union, Great Britain and fifty-nine other nations signed the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Celestial Bodies (hereinafter called the Space Treaty), the drafting of which had been completed by the United Nations Committee on the Peaceful Uses of Outer Space late in 1966.2 When the Treaty is ratified by five governments, inhuding the Soviet Union, the United States and Great Britain, and thus comes into force,3 it will become the most important instrument to date for the ordering of man's activity in space. This landmark treaty is in the nature of a culmination of efforts in the United Nations, which were earlier evidenced by Resolutions 1721 (XVI) 4 and 1962 (XVIII).5 Neither the Space Treaty nor either of these resolutions, however, deals explicitly with reconnaissance activities carried on from space. It is thus necessary to provide a background for interpretation of the Treaty and resolutions, and Of the Missouri Bar. 1 While discussion of reconnaissance satellites has continued for some time, no significant attempts to define precisely the term "reconnaissance" or other important terms have apparently been made. In particular, the Soviet assertion that all gathering of "intelligence information" is illegal, as will be discussed below, points up the importance of the functional delineation of terminology in attempting to legally characterize these activities. 2 N.Y. Times, Jan. 28, 1967, p. 1, col. 8. 3 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Celestial Bodies, Art. 14, pars. 2 and 3. The text of the Treaty is found in N.Y. Times, Dec. 9, 1966, p. 18. 4 YEARBOOK OF THE UNITED NATIONS, 1961 (1963). 5 YEARBOOK OF THE UNITED NATIONS, 1963 101 (1965). No. 3] RECONNAISSANCE SATELLITES to determine the possibility of legal characterization outside these instruments. It is proposed here to (1) present and analyze the views of the major space participants on the proper legal characterization of reconnaissance satellites; (2) to note the political and technological bases of these views, and, (3) in the light of political realities and the present and proximate technological capabilities of these satellites, to examine the prospects for legal characterization and utilization to keep the peace and police arms control measures. I. The Legal Regime of Outer Space A. The Legality of Satellite Overflight Article I of the Space Treaty provides that "outer space, including the moon and other celestial bodies, shall be free for exploration and use by all states..." This is, however, only a formalization of the view that has been generally accepted for some time that the legal regime of outer space is one of qualified freedom.6 The United Nations Resolution 1962 (XVIII), adopted unanimously in December, 1963, proolaimed that outer space is free for the use of all states according to international law.7 Aside from international pronounce- ments, it is generally argued that the lack of protest by overflown nations since the advent of satellite overflights that these constituted violation of their territorial sovereignty has caused the "freedom" principle to become a customary rule.8 For practical reasons, sovereignty is rejected because valuable space endeavors, by their nature, must be unrestricted by territorial boundaries.9 By both customary international law and by multilateral agreement in the Paris and Chicago Conventions, however, territorial sovereignty 6 E.g., Galina, A., On the Question of Interplanetary Law, Sovetskae Gosu- darstro i Pravo, No. 7 July, 1958, pp. 52-58, reprinted in S. Doc. No. 26, infra note 10 at 105; Beresford, Surveillance Aircraft and Satellites, A Problem of InternationalLaw, 27 J. AIR L. & Com. 107, 108-09 (1960). 7 YEARBOOK OF THE UNITED NATIONS, 1963 110 (1965). 8 LIPSON AND KATZENBACH, REPORT TO NASA ON THE LAW OF OUTER SPACE 15 (1960); Note, 61 COLUM. L. REv. 1074, 1079 (1961); Bloomfield, The Prospects for Law and Order, in BLOOmFIELD, OUTER SPACE. PROSPECTS FOR MAN AND SOCIETY 150, 159-160 (1962); Jacek (Counselor, Polish Mission to the United Nations), Selected Problems of National Sovereignty with Reference to the Law of Outer Space, 1961 PROCEEDINGS, AMER. SOC. INT'L LAW 171, quoted by WOLFE, CUSTOM IN PRESENT INTERNATIONAL LAW 64 (1964). 9 E.g., Note, 61 COLUM. L. REv. 1074, 1079 (1961); Jenks, International Law and Activities in Space, 5 INT'L & CoMP. L. Q. 99, 103 (1956). McGILL LAW JOURNAL [Vol. 13 does extend to the airspace above national territory.'0 Thus acceptance that the legal regime of outer space is not that of sovereignty of the underlying state raises controversy over the location of the boundary between airspace and outer space. This question has drawn numerous proposals by scientists and lawyers, 11 which have in turn inspired voluminous analyses.12 Notwithstanding that a number of these proposals have set the boundary high enough to include at least portions of presently common orbital altitudes, it is generally agreed that the boundary, if it existed, would be somewhere above the altitude now in common use for aviation purposes, "and not higher than, roughly, the probable perigee of durable satellite orbits." 13 B. Restriction to Peaceful Purposes Even before the advent of satellite activity, many nations, and in particular the United States and the Soviet Union, have ostensibly desired that outer space be devoted exclusively to "peaceful uses." In January, 1957, the United States urged in the United Nations that studies on disarmament include space activities, and in August of that year the United States was joined by Canada, France and Grea&t Biii in in proposing United Nations inspection 14 of spacecraft to insure that they served peaceful purposes only. 10 Customary law: Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space Fourteenth Session, General Assembly, 1959, U. N. Doe. No. A/4141, Agenda item 25, p. 25; LipsoN AND IATZENBACH, supra note 8 at 15. Paris and Chicago Conventions: Symposium Legal Problems of Space Explora- tion, S. Doc. No. 26, 87th Cong., 1st Sess. 1219, 1222-1240 (1961). l These are summarized and analyzed in LIPSON AND KATZENBACH, op. Cit. supra note 8 at 14. 12 E.g., Haley, Survey of Legal Opinion on Extraterritorial Jurisdiction, reprinted in S. Doe. No. 26, supra note 10, at 719; Bloomfield, supra note 8 at 152; SCHIcK, Wno RuLEs THE SxIEs: SOME POLITICAL AND LEGAL PROBLEMS OF THE SPACE AGE 16-20 (1961); Christensen, Ronald, Soviet Views on Space Law, May, 1961 (typewritten manuscript in Yale Law School Library, 1961); Note, 61 CoLUm. L. REv. 1074 (1961). 13 LIpsoN AND KATZENBACH, supra note 8, at 15. Accord, Note, 61 COLUM. L. REv. 1074 (1961). The International Radio Regulations define "Spacecraft" as including "any type of space vehicle, including an Earth satellite ... whether manned or unmanned..." Reg. 84E, quoted by JENxS, SPACE LAw 189 (1965). U. N. General Assembly Resolution 1721 (XVI), concerning registration of spacecraft, refers to objects launched "into orbit and beyond." 14 LIPsoN AND KATZENBACH, op. cit. supra note 8, at 5. These early attempts by the United States were considered by the Soviet Union as thinly disguised attempts to ban Soviet ICBMs, while maintaining the American strike force on bases in Europe, and were rejected. Korovin, E., On the Neutralization and Demilitarization of Outer Space, International Affairs (Moscow), No. 12, 1959, p. 82. No. 33 RECONNAISSANCE SATELLITES The National Aeronautics and Space Act of 1958 declared that "activities in space should be devoted to peaceful purposes for the benefit of mankind." 15 The Soviet Union, shortly after Sputnik I was launched, submitted a proposal in 1958 to the United Nations General Assembly for international cooperation in the exploration of cosmic space, and the restriction of use of space to peaceful purposes. 6 In December, 1961, the United Nations General Assembly adopted Resolution 1721 (XVI), which affirmed that international law, including the United Nations Charter, applies to outer space.17 Article 2, paragraph 4 of the Charter provides that "all members shall refrain in their international relations from the threat or use of force against the territory or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." This language, however, does not restrict inter- national activities to those of a peaceful nature, unless by "peaceful" is meant avoidance of a "threat or use of force." Resolution 1962 (XVIII) ,18 unanimously adopted in December, 1963, merely reaffirms Resolution 1721 (XVI) in regard to peaceful uses of space.19 The recent United Nations Space Treaty goes further than any previous instrument in establishing the doctrine of "peaceful purposes," but conspicuously falls short of complete crystallization of thaft doctrine. While the major portion of the treaty provisions apply throughout outer space, article 4, in restricting activities to those of a peaceful 20 nature only, applies to the moon and celestial bodies only. '5 Public Law 85-568, sec. 102(a). The same Act provided for military space activities by the Department of Defense and the Armed Services. 16U. N. Doc. No. A/3818 (1958). This proposal, however, required dismantling of United States military bases abroad, and was not acceptable to the United States.
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