2. An end to the production of fissionable materials for military purposes;

3. The reduction of armed forces and "conventional" armaments to agreed levels;

4. A beginning in the conversion of nuclear stocks to peaceful

uses;

5. Guarantees against the possibility of surprise attack;

6. The use of outer space missiles exclusively for peaceful and scientific purposes.

I think it can be reasonably argued that were all the above six points to be implemented, all nations would share in the maintenance of a balance of security, and nuclear disarmament would be linked with a proper form of control of outer space.

It would be idle to deny that agreement between the three nuclear powers on the question of control of outer space, having regard to the problems of disarmament involved, will be extremely difficult. But even though the differences between the powers may seem at the present time almost insuperable, this should not prevent the interested countries reaching some agreement on a technical and scientific basis.

Before an effective agreement is reached on the question of the control of the various missiles designed to take objects into outer space, one could envisage proposals that inspectors should be fully informed of such matters as:

(a) the location of launching sites;

(b) details of construction including;
(i) the size of missiles;

(ii) the nature of the materials used;
(iii) propellant fuels, etc.;

(c) the specific purposes for which satellites are being launched. This would presumably necessitate the inspection of each satellite on its launching site.

The availability of knowledge on these points which would be necessary for effective control shows how far-reaching such an agreement would be. Clearly, the pervasive nature of the information which would have to be exchanged to ensure effective control might well be regarded as the last and most advanced stage of agreement on disarmament.

The race to develop the ICBM, considered by many to be the ultimate weapon in nuclear warfare, involves the most sensitive areas of national security. Since this is so, it scarcely need be emphasized that, in the present state of distrust, many far-reaching decisions must be taken and made effective before this last stage can be reached.

I think that I have said enough to indicate how many are the subjects which need enquiry in this vital and urgent subject. I had hoped that a Special Assembly could have been convened before the next Regular Assembly. I had further hoped that such an Assembly would have established a conference consisting of diplomats, international lawyers and scientists who could, as experts, study the subjects involved and, rather like the present Conference on the Law of the Sea, make suitable recommendations to the Assembly, as I feel that no Assembly can complete its work in respect of outer space control without expert guidance. But although there seems no prospect of a Special Assembly, the Regular Assembly, as I have already said, will

consider the subject we have been discussing and will, in all probability, I think, establish a conference on something like the lines I have been bold enough to suggest.

The use of outer space can be for purposes of war or for those of peace. If for war then mankind's greatest adventure since coming to this sphere will lead only to his complete destruction. If for peace, then he will penetrate the mysteries of the universe, explore the meaning of creation and in his unsolvable quest for knowledge transform the lives, if not of us, of those who will follow after us.

PERSPECTIVES FOR A LAW OF OUTER SPACE*

By Myres S. McDougal, of the Board of Editors, and Leon Lipson, Yale Law School

The conquest of space has barely begun. Yet the law of space, instead of lagging behind the astronauts as some lawyers fear, is threatening to outfly the attraction of the earth's gravity. Before legal speculation reaches escape velocity, we should perhaps remind ourselves of the specific problems that may confront us soon, the earthly origin of much of our law, and the earthly ways in which for some time we shall have to continue to think about law in outer space.

I

Let us begin with a glimpse at the possible pattern and conditions of use of outer space and a brief mention of some of the ways in which it can now be foreseen that they may affect our thinking about events on earth, with consequences relevant for the law. Any attempt today to compile a definitive catalogue of the possible uses of outer space would be presumptuous. Such a catalogue would have to be openended and loose-leaved: open-ended, because space flight itself will suggest new uses of space (as well as discourage or defer some presently contemplated uses); and loose-leaved, because the sequence in which activities are conducted in space will be a function of many variables including considerations of scientific curiosity, militarystrategic policy, and cost.

Among the known uses of satellites already launched, observations of the flights themselves permit inference as to the measurement of atmospheric density at pertinent heights, of the distribution of matter within the earth, and of the shape of the earth and the precise relative location of points on the earth's surface. The addition of a radio beacon emitted from a satellite makes possible the measurement of total ionization in the exosphere (a sub-layer of the atmosphere) by comparing the satellite's radio position with its optical position. Other instrumentation on the satellites has measured, for transmission to the earth, data on atmospheric temperatures, the impact of micrometeorites, and

*Reprinted from American Journal of International Law, July 1958, pp. 407-431. 1 See the books and periodicals on space uses listed in Hogan, "A Guide to the Study of Space Law," p. 1290, at 10-18 (Rand Corporation, March 1, 1958; to be published in St. Louis Univ. L. J., Spring, 1958); Odishaw, "The Satellite Program for the International Geophysical Year," 35 Dept. of State Bulletin 280 (1956) President's Science Advisory Committee, "Introduction to Outer Space" (hereinafter cited as "Killian Report") (March 26, 1958) Berkner, "Man's Space Satellites," 14 Bulletin Atomic Scientists 106 (No. 3, March, 1958). A popular symposium treatment is given in 41 Air Force: The Magazine of American Airpower, No. 3 (March 1958). See also the statement of Dr. Joseph Kaplan, Chairman, U. S. Committee for the International Geophysical Year, National Academy of Sciences, H. Rept. Comm. on Appropriations, Subcomm. on Independent Offices, Report on International Geophysical Year 20-26 (1957); statement of Dr. Richard W. Porter, Chairman, USNC-IGY Technical Panel on the Earth Satellite Program, ibid. 68-73; A. N. Nesmeianov, President of USSR Academy of Sciences, "The Problem of Creating an Artificial Earth Satellite," Pravda, June 1, 1957, p. 2.

cosmic radiation of various types. On at least one satellite (Explorer III) information has been stored up in instruments and its transmission triggered by radio beams from the earth as the satellite passes over appropriate installations. The second Soviet satellite, as is well known, carried a dog, which survived for a week and (like other animals sent into outer space in rockets by the Soviet Union and the United States) furnished data for the planning of manned flight.2

5

Future activities in space may be rather suggested than predicted.3 Responsible spokesmen have said that it is not too early to contemplate the use of unmanned orbital satellites for radio and television relays,* for photographic observations of weather, and for photographic reconnaissance of events on the earth's surface; rocket landings on the moon; the landing of scientific instruments on the moon in working condition; manned flight in an orbital satellite that can return its human passenger alive to the earth; manned flight to the vicinity of the moon and back; and the use of outer space for part of the trajectory of peaceful missiles, delivering (say) mail or cargo between distant points on earth. More remote speculation concerns the establishment of space platforms; the assembly in outer space of large craft for interplanetary exploration; modification of the earth's weather; the acquisition of economic resources now known or unknown, such as solar energy, new forms of radiation, and, ultimately, mineral or other resources that are present, and may conceivably become available, on the moon or other celestial bodies; and finally, discussed with all the

6

For the fullest account so far given of the results of experiments conducted on the two Soviet satellites launched in 1957, see "Soviet Artificial Satellites of the Earth," Pravda, April 27, 1958, p. 4, giving a preliminary report, largely without numerical measurements, on measurement of orbits, atmospheric density and temperature, composition of the ionosphere, cosmic radiation, and biological effects on the dog carried in the second satellite. See also N. Y. Times, May 2, 1958.

Besides the sources cited in note 1, see Edson, "Astronautics and the Future," 14 Bulletin Atomic Scientists 102 (No. 3, March 1958); Recommendations of the Technical Panel on the Earth Satellite Program of the U. S. National Committee for the International Geophysical Year, excerpted in N. Y. Times, March 20, 1958. But cf. Dr. James Van Allen, Chairman of the Working Group on Internal Instrumentation of the USNC-IGY Technical Panel on the Earth Satellite Program, National Academy of Sciences, testifying before a subcommittee of the House of Representatives in May, 1957: "I might say I do not subscribe to some 99 percent of what is written about this subject-exploration of space-as having any validity." H. Rep. Comm. on Appropriations, Subcomm. on Independent Offices, Report on International Geophysical Year 91 (1957).

Petrov, "Artificial Satellites of the Earth and the World Telecenter," Zvezda, No. 4, pp. 160, 164 (June, 1957). According to Petrov, the notion of using aircraft as relay stations for television was proposed by P. V. Shmakovyi in 1936.

The U. S. Air Force reported in January, 1958, that it hoped to launch a military reconnaissance satellite with a recoverable capsule by the Spring of 1959: testimony of Major General Bernard A. Schriever, Commander of Air Force Ballistic Missile Division, before the Sen. Preparedness subcommittee, reported in N. Y. Times, Jan. 15, 1958. According to subsequent testimony by the same officer before the House Select Committee on Astronautics and Space Exploration, the project for the development of a reconnaissance satellite had been given top national priority, N. Y. Times, April 25, 1958. Unidentified Air Force officials were reported as estimating "that a reconnaissance satellite carrying a telescope forty inches in diameter could detect objects on earth less than two feet in size from an altitude of 500 miles." Ibid. The President told the American Society of Newspaper Editors on April 17, 1958, that a reconnaissance satellite, if successful, "would transmit military information of value to all the armed forces." N. Y. Times, April 18, 1958. See also Petrov, loc. cit. note 4 above, p. 163; Edson, "Astronautics and the Future," 14 Bulletin Atomic Scientists 102 at 104-5 (No. 3, March, 1958). Some technical limitations are pointed out in Parsons, "Open Sky Plan in the Atomic Age," Missiles and Rockets 78, 80 (June, 1957) Haviland, "On Applications of the Satellite Vehicle," 26 Jet Propulsion 360, 361-362 (No. 5, Pt. 1, May, 1956); "USAF Pushes Pied Piper Space Vehicle," Aviation Week, Oct. 14, 1957, p. 26.

Counters on the two Explorer satellites launched early in 1958 have detected radiation of unexpected intensity near the apogees of their orbits. N. Y. Times, May 2, 1958.

casualness of a confident scientific era, the encounter with sentiment or intelligent beings on other planets.

The patterns of use of outer space will of course unfold in a context of conditions which even now, we suggest, can be identified as being certain to affect the law of space as it develops over the years. Some of these conditions are common to many areas of human conduct and interest; some are, in a measure, peculiar to the use of outer space. Those that are noted below are intended to be illustrative only.

One condition of first importance is the extraordinary interdependence of scientific, military, commercial, and other objectives that may be advanced by the same activities in space. Scientific observations on cosmic radiation may some day serve as a basis for the development of radiological warfare. A television relay station may be capable of use to interfere with communications instead of facilitating them. A reconnaissance satellite may be made to yield important economic benefits from services to meteorology. Geodetic observations made by celestial mechanicians may improve the accuracy of intercontinental ballistic missiles by making international maps more precise. For an orbiting satellite carrying a nuclear warhead, it is perhaps not easy to imagine an immediate commercial or scientific use that would not be served more efficiently by some other device, but it would be rash to say that no such use is possible.

By reason of this interdependence, it may be difficult to apply some well-known legal techniques-prohibition, conditional permission, allocation of responsibility for damage, regulation, and so on-on the basis of supposed predominant category of use. If we want certain benefits we may have to accept certain risks. Especially in the preliminary exploratory stage (which may last for generations), we may have to stress those aspects of legal control that permit and encourage development, while doing our best to measure the size of the risk to which we are being exposed. This does not mean that we ought to reject the possibility of reaching, or at least talking about, an agreement to outlaw certain uses of outer space, for the marginal gains to be expected from those uses may not be worth their price; but it does imply that it will not be easy to define "peaceful purposes" or "scientific purposes" without risk of hampering activities that have multiple uses.

A second feature in the setting is established by the relation between activities in space and the international political situation; that is, the structure of the earth arena, the position and number of Powers, their relative technological success, and the expectations of violence. The only Powers that have so far (to the best of our knowledge) succeeded in throwing a ball or a can into outer space are the same two Powers around which the nations of the earth have been observed to cluster in the well-known postwar "bipolarity." In the short run, the gap between the most powerful and the least powerful nations, between the technologically most advanced and the technologically least advanced, will seem to widen, and the visible orbiting

See the papers reprinted in "Man in Space: A Tool and Program for the Study of Social Change." 72 Annals N. Y. Acad. Sci. 165-214 (1958); Haley. "Space Law and Metalaw: A Synoptic View," paper presented at the 7th Annual Congress of the International Astronautical Federation, Sept. 19. 1956; Cox and Stoiko, Spacepower 176 (1958). Cf. Tumanov, "Determining the Position of a Ship by Means of an Earth Satellite." Sovetsky Flot, Dec. 21, 1957, p. 3, quoted in 9 Current Digest of the Soviet Press 23 (No. 52, 1958).