View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Kentucky Kentucky Law Journal Volume 52 | Issue 2 Article 6 1963 Legal Control of Outer Space Joe C. Savage University of Kentucky Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Air and Space Law Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Savage, Joe C. (1963) "Legal Control of Outer Space," Kentucky Law Journal: Vol. 52 : Iss. 2 , Article 6. Available at: https://uknowledge.uky.edu/klj/vol52/iss2/6 This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. Notes LEGAL CONTROL OF OUTER SPACE In keeping with the general proposition that many of man's pur- plexing problems have been caused because physical science has usually advanced at a faster pace than the science by which man governs himself, the modern assault on the vast unknown of space threatens to catch man unprepared. In the very dawn of the day in which man will be both working and living in space, he is without rules by which his life must be governed. It is important that these rules be formulated before that day when living in space for extended periods of time becomes a reality. This note will explore both the unknowns of space and the unknowns of space law as it exists today. There are nine planets in our solar system, each orbiting around a relatively small star, the sun, which is one of about a hundred billion stars orbiting about a central point in a galaxy known as the Milky Way, which is one of some two hundred million other galaxies.1 The Milky Way is some ten to twenty thousand light years deep at the center, a thousand light years deep at the edges, and about eighty thousand light years in diameter.2 The sun orbits about a central point in the Milky Way some thirty thousand light years away and takes two hundred million years to complete. Remembering that light travels at approximately 186,300 miles per second, the distance light would travel in one year is approximately 5,884,471,800,000 miles. All this is only that small portion of the universe which is within range of a 200-inch telescope, the largest at present. The distance between the sun and the farthest planet, Pluto, is three and a half billion miles. In order from farthest away, the dis- tances from the sun to the other planets are: Neptune, 2,800 million miles; Uranus, 1,783 million miles; Saturn, 886.1 million miles; Jupiter, 483.4 million miles; Mars, 141.5 million miles; Earth, 92.9 million miles; Venus, 67.2 million miles; and Mercury, 36.0 million miles.3 At present propulsion capabilities, it is estimated that it would take from one and a half to five days to go from the Earth to the moon, 1 Staff Report of the Select Committee on Astronautics and Space Explora- tion, Space Handbook: Astronautics and its Applications, H.R. Doc. No. 86, 85th Cong., 2d Sess. (1959). 2 Ibid. 3 21 The Colliers Encyclopedia 174 (1962) [hereafter cited as Colliers]. NoTEs about 110 days to Mercury, 140 days to Venus, 260 days to Mars, 2.7 years to Jupiter, 6 years to Saturn, 16 years to Uranus, 31 years to 4 Neptune and 46 years to Pluto. The nearest star system, Alpha Centauri, lies beyond reach of our present propulsion capabilities. Alpha Centauri is about 25 trillion miles away, or approximately four light years. It would thus appear that man limit his space travel to the solar system for some time. Our atmosphere is usually described in terms 6f five layers, each of which, however, blends into the next so no definite boundary line can be drawn. Even the atmosphere itself has no discernable limit, gradually growing thinner until the existence of gaseous air is im- perceptible. It is important to keep in mind that one-half of the entire mass of the atmosphere is below "3.6 miles, and ninety-seven per cent of its mass is below eighteen miles.5 The layer closest to Earth is the troposphere, varying in height from about ten miles at the equator to a little less at the poles." Most of all air flight activity has been conducted in this area. Even so, only the first twenty per cent of the troposphere, or the area up to 15,000 7 feet, has enough oxygen to sustain life. The next highest layer is the stratosphere, which extends to about fifty miles.8 It is here that most of the remaining air in the atmosphere is found, and within which the aerodynamic lift needed to sustain winged flight ends. This environment is extremely inhospitable. For example, at 63,000 feet blood within the human body would boil while the atmospheric temperature would be seventy degrees below zero, Fahrenheit.9 The next highest layer is the mesosphere, extending to about seventy-five miles. 10 Often this is the thermosphere, extending to about 400 miles.'1 Because of the intense electrical activity in these last two layers, they are often referred to as the ionosphere. The outer layer, or exosphere, gradually merges into outer space anywhere from 10,000 to 18,000 miles. In this layer the amount of air is almost insignificant, there being only a few traces of hydrogen, 2 oxygen and helium.' 4 Staff Report, op. cit. supra note 1, at 23. 5 Hogan, Legal Terminology for the Upper Regions of the Atmosphere and for the Space Beyond, 51 Am. J. Int'l L. 362, 371 (1959). 6 21 Colliers 356. 7 Menter, Astronautical Law 5 (1959). 8 21 Colliers 356. 9 Menter, op. cit. supra note 7, at 5. 10 21 Colliers 356. 11 Ibid. 12 Iid. KENTUCKY LAW JOUBNAL [Vol. 52, I. PROBLEMS A. Sovereignty in Space Of the three basic problem areas in defining legal controls for outer space to be discussed, the first is sovereignty in space. Of some benefit in discussing this problem is an examination of the development of the law of the sea. The early maritime powers interested in exploration-such as Spain, Portugal, Venice and Eng- land-first asserted sovereginty over enormous sections of the sea.' 3 For example, after Columbus had sailed to discover the New World, Pope Alexander issued Bulls separating this discovery into two parts, one under the exclusive control of Spain, the other under Portugal.14 Perhaps the first to claim that the sea was open to all and could not be apportioned to any nation was Queen Elizabeth. Her purpose was to enable the English to sail in waters given to Spain by the Papal Bull, and in order to accomplish this, she declared that the sea was open to all nations.'5 A little later, it was reasoned that the sea by its very nature was not subject to sovereignty; that it was of such character as to permit a general use by all nations without discrimination.'0 King Charles I, however, shifted from the freedom of the seas philosophy of Queen Elizabeth, and England again asserted control over a large portion of the sea.' 7 Freedom of the seas, then, seemed to depend upon the inclination of the leading naval powers to grant this freedom. Gradually, however, this principle changed with the growth of com- merce among nations. Over a substantial number of years a rule of international law providing for freedom of the open seas evolved and became firmly established. It is now one of the oldest rules of inter- national law. Even so, it is not universally followed, for the rule is fully operative only in times of peace. Freedom of the seas has always been subordinated to the security interests of the various nations15 Along with the development of freedom of the high seas came the doctrine that states may exercise sovereignty over a small portion of the sea extending a short distance from their coastlines, known as the territorial sea. That a government must protect itself from the dangers arising from conflicts waged too near its coast seemed to be the primary reason for declaring sovereignty over this area of the sea.' 9 Various limits have been asserted. The United States has followed 's Schick, Who Rules the Skies: Some Political and Legal Problems of the Space Age 10 (1961). 14 Menter, op. cit. supranote 7, at 13. 15 1 Oppenheim, International Law 92 (8th ed. 1955). -6 Grotius, Commentary of the Law of Prize and Booty ch. 12 (1950 ed.). '7 Schick, op. cit. supra note 13, at 10. 18 Ibid. '9 United States v. California, 332 U.S. 19, 35 (1947). 19634 No'ms a policy of claiming sovereignty over the first three miles from the coast. Thomas Jefferson noted that this limit was established because it was the utmost range of a cannon ball.20 The majority of the other countries have also followed the three-mile rule, including Great Britain. The Soviet Union, however, has asserted since the days of Tsarist Russia a twelve-mile limit, while Chili, Equador and Peru contend that their limit is 200 miles.21 In the conference on the law of the sea of the United Nations in 1958, the conferees accepted unanimously the freedom-of-the-seas doctrine, but could not resolve the confusion among nations over a standard width of the territorial sea.