1 Right of overpass
The first law of outer space is that the satellite of one nation may pass over the territory of another nation. Without this right, outer space activities would be impossible. But the establishment of this right was not a given. Satellites, in the era before any existed, were an unprecedented threat to national security. They could reveal the location and disposition of sensitive military assets. Satellites could even be a new vector for a surprise attack. This chapter is about how the right of overpass developed despite these concerns.
The search for open skies
President Eisenhower took office in 1953 with a nagging problem: how could the United States ensure that it would never be dragged into conflict by a sneak attack ever again? For the men of Eisenhowerâs era, the memory of Pearl Harbor only 12 years earlier remained fresh. As tensions with the Soviet Union rose during the Cold War, the possibility of another surprise attack seemed probable.1
Stalled disarmament negotiations between the Soviet Union and the United States added to the risk of conflict. Since the end of the Second World War, the United States and the Soviet Union had been engaged in disarmament talks. An agreement could never be reached because of one basic problem: verification. The United States insisted that a prerequisite to any disarmament agreement was the creation of an international inspection system to verify disarmament as it occurred. After the inspection system was in place, the process of disarmament could begin. The Soviet Union took the opposite view that disarmament should occur first, and then an inspection system could verify disarmament. The obstacle of verification could not be overcome because of a fundamental lack of trust between the superpowers. The Americans did not think the Soviets would actually disarm, and the Soviets viewed inspectors as Western spies.
The Eisenhower Administration became especially alarmed about Soviet military capabilities in May 1955. The alarm had been caused, ironically, by a breakthrough in disarmament negotiations. Because disarmament discussions on nuclear weapons had stalled, France and the United Kingdom proposed that talks focus instead on limiting conventional forces. This approach had the benefit, if it succeeded, of building trust before revisiting the difficult problem of nuclear weapons. A sticking point was the Westâs continued insistence that an inspection system be in place to verify disarmament. On May 10, 1955, the Soviets responded to the Western proposal approvingly. For the first time, the Soviet Union appeared to accept in principle the creation of an inspection system. In doing so, however, the Soviet Union alarmed the Eisenhower Administration by commenting that limitations on conventional weapons were a more productive topic because nuclear weapons, unlike conventional weapons, could easily be stockpiled in secret beyond the detection of an inspection system. This comment caused the United States to scramble to understand whether the Soviets had secretly built a nuclear weapons stockpile while they had been in disarmament talks.2
The Eisenhower Administration was desperate for better intelligence on Soviet military capabilities. Improved intelligence had two benefits. First, the information would help prevent another surprise attack on the United States. Second, if the United States had a reliable way to gather information on the Soviet military on a regular basis, the paralysis in disarmament negotiations might end. If the United States could independently obtain information on the Soviet military, then it would not need to demand the international inspection system that the Soviet Union found so objectionable as part of a disarmament treaty.
President Eisenhower tried at first to gather intelligence by agreement. In July 1955, he proposed an âOpen Skiesâ policy under which the great powers would exchange technical information on their military installations and allow one another to conduct reconnaissance flights over their respective territories. The Soviet Union rejected the proposal as a ploy to gather targeting data on Soviet facilities.
Failing to obtain information by consent, the United States turned to intrusive measures. In January 1956, the United States began Project Genetrix, a covert operation to use weather balloons to photograph Soviet facilities under the guise of scientific research. The plan involved the release of weather balloons over Europe, where prevailing winds carried them over the Soviet Union. The United States recovered the balloons in Japan and Alaska. The project was short-lived because the United States came under international pressure to cancel the program. Other nations complained that the balloons violated their airspace, and the uncontrolled paths of the weather balloons forced the cancellation of civilian flights. In June 1956, the United States began using the U-2 spy plane. Flying too high for Soviet aircraft to intercept, U-2 aircraft made repeated incursions into Soviet airspace. Although the Soviets could not stop these flights, at least not at first, they were aware of and agitated by the flights.
American military planners dreamed of moving beyond airborne reconnaissance to the use of satellites. Satellites promised to be the ultimate intelligence-gathering tool. Satellites could not be intercepted, they would cover a broader area than any aircraft, and their presence would offer a continuous stream of information. Satellites would virtually ensure that a surprise attack like Pearl Harbor could never happen again. Satellites would effectively implement Open Skies and could potentially resolve the impasse over verification in disarmament talks.
Launching a satellite, however, could spark the very conflict that the United States hoped to prevent. The RAND Corporation prepared a study for the U.S. government in 1946, which recommended launching a satellite for military reconnaissance. But that same study warned that the Soviet Unionâs reaction to the launch of an American satellite was unpredictable. For the Soviet Union, the repercussions of an American satellite could be seen as an act similar to the detonation of the first atomic bomb. The Eisenhower Administration wanted a way to introduce the world to satellites without sparking an arms race or a new conflict.3
President Eisenhower also wanted the international community to recognize a legal right to use satellites. A satellite must naturally pass over other nations in orbit. International law was unclear whether the satellite of one nation could legally pass over another nation without the latterâs consent. International law had established that the airspace above a nationâs land and water is sovereign territory. This had been codified in the 1944 Chicago Convention on International Civil Aviation. International law had not, however, established the upper limit of airspace or the altitude at which national sovereignty ends. Some nations, like the Soviet Union, claimed that sovereignty above their territory was unlimited and extended into outer space. To make satellites useful, especially if future satellites were to gather military intelligence, the international community had to be convinced that satellites had a legal right to pass over them.
One way to secure legal recognition was through a treaty. The opportunity to pursue this approach appeared in 1955, thanks to efforts by Professor John Cobb Cooper, head of the Institute of Air and Space Law at McGill University in Montreal, Canada. Professor Cooper had participated in the drafting of the 1944 Chicago Convention, and in 1951, he wrote a seminal treatise on the definition of airspace and the limit of national sovereignty. In light of the Soviet Unionâs and the United Statesâ announcements to launch satellites in 1955, Professor Cooper proposed that an international conference be held to define outer space, identify the limit of national sovereignty, and establish a right for satellites to pass over other nations. He suggested that the International Civil Aviation Organization, which planned to hold its next regular conference in 1956, was an appropriate forum to begin these discussions.
The United States resisted Professor Cooperâs efforts to establish a right of overpass through a treaty. The Eisenhower Administration had several reasons for disfavoring the treaty approach. First, the United Statesâ principal goal was to convince the Soviet Union to accept a legal right of overpass. The Soviet Union had already taken the position that sovereignty extends upward indefinitely into outer space. The Soviet Union was also unlikely to agree to any treaty that allowed American satellites to observe Soviet military installations; it had rejected the Open Skies proposal to do the same with aircraft. Second, Professor Cooperâs proposal to begin discussions at the International Civil Aviation Organization was particularly unhelpful. The Soviet Union was not a member of that organization. Thus, even if a favorable agreement could be achieved, the Soviet Union would not be party to it. Moreover, the regulation of outer space was outside the jurisdiction of the organization, which is limited to âcivil aviation.â Finally, Professor Cooperâs proposal to define outer space and the upper limit of sovereignty appeared premature. Professor Cooper proposed that the boundary of outer space and sovereignty be set at an altitude of 300 miles above sea level. Beyond this limit, satellites could freely transit over other nations. But without experience in outer space activities, there was no way of knowing whether the 300-mile limit was reasonable. With hindsight, we know it was not; a 300-mile limit applied today would mean the International Space Station orbiting at around 250 miles is not in outer space.
The United States chose instead to establish a legal right to overpass through customary international law. Customary international law is created by practice rather than treaty or agreements. Customary international law is not necessarily written, but it is still binding law. The creation of customary international law generally requires two elements. First, there must be widespread âstate practiceâ to which there is no significant objection. In other words, states generally act in a particular way. Second, the actions of the states must be undertaken out of a sense of legal duty, or opinion juris, and not courtesy or convenience. The proverbial law school example is that the literal rolling out of the red carpet for a visiting head of state is not customary international law. Though the practice is common, it is done out of courtesy and not legal duty. Providing foreign heads of state with diplomatic immunity, however, is both widespread and considered a legal duty. The United States sought to create a right of overpass for satellites under customary international law by launching a satellite under conditions in which other nations â the Soviet Union in particular â would not object.
Creating international law through custom was preferable in this case because it avoided other complicated legal questions. The problem of overpass raised three distinct legal issues: (1) what is the boundary between airspace and outer space, (2) where does national sovereignty end, and (3) do satellites have the right to transit over foreign territory? The first issue raised complicated technical questions about the nature of the atmosphere and when it becomes outer space. Even today, there are no technical criteria to define where outer space begins. The second question was politically controversial. The limit of national sovereignty does not necessarily have to coincide with the boundary of a technical definition for outer space. Assertions of sovereignty extend as far as necessary for national security needs. Thus, in the twentieth century, the international law of the sea generally extended territorial waters from three miles beyond coastlines to 12 miles in part due to advances in naval gunnery. The upward limit of sovereignty could theoretically extend into a portion of outer space if that was needed for national security.
The only question that the United States wanted to answer was the third: do satellites have a right to transit over foreign territory. Answering this question does not require a definition of outer space or identification of the upward limit of national sovereignty. What mattered was that the international community accepts that a satellite could pass overhead regardless whether that satellite was in airspace or outer space or whether the satellite was traveling inside or outside a sovereign nationâs territory. For example, under the law of the sea, warships may pass through a foreign nationâs territorial waters under the right of innocent passage, if the warshipâs transit is not harmful to the peace and security of the territorial state. Because the Eisenhower Administration was only interested in observation, a similar right to innocent passage for satellites was an acceptable option to the United States. This approach avoided complicated questions about where outer space began and where sovereignty ended.4
The problem that President Eisenhower faced was how to avoid a Soviet objection to the passage of an American satellite over Soviet territory. One of the requirements of customary international law is that there be no substantial objection to the state practice. An objection by the Soviet Union would undermine the United Statesâ efforts to create customary international law. The RAND Corporation had suggested in its 1946 study that the first satellite should be nonmilitary in nature and fly an equatorial orbit so that the Soviet Union would have no opportunity to object. Such an innocuous satellite would then begin to create the state practice necessary to establish customary international law. In May 1955, the White House National Security Council recommended an approach similar to the RAND Corporation. The plan was for the United States to launch reconnaissance satellites only after nonmilitary satellites had established a legal right to pass over other nations.
The perfect opportunity to launch an innocuous satellite appeared with the International Geophysical Year. In March 1954, the American scientists proposed the launch of a scientific satellite as part of that program. The National Science Foundation began lobbying the government to support the effort. By supporting the launch of a satellite during the International Geophysical Year as a purely scientific endeavor, the Eisenhower Administration hoped to dull the Soviet Unionâs reaction to the military implications of a satellite. Then in April 1955, the Soviet Union itself announced plans to launch a satellite for the International Geophysical Year. Now, this was truly the golden opportunity. If the Soviet Union had decided to ...
