Two Problems of Outer Space Control: The Delimination of Outer Space, and The Legal Ground for Outer-Space Flights

To rockets, too, of course, fully applies the principle of sovereignty of the subjacent states over the airspace while they are passing trough this space and before they leave it. This viewpoint has been clearly held even by the author of the first treatise on the legal problems of astronautics, the Czech air law expert Dr Vladimír Mandl, (who, obviously because he has published his work on astronautics in Germany, is designated once as a “German” author, at other times as an “Austrian” one), in his work Das Weltraumrecht, ein Problem der Raumfahrt, p. 18 (Mannheim-Berlin-Leipzig, 1932).Google Scholar

This right point of view has been expressed by the Soviet authors F. N. Kovalev and I. I. Tcheprov, Iskustvenniye sputniki Zemli i mezhdunarodnoye pravo (Sovietsky yezhegodnik mezhdunarodnogo prava, p. 139, Moscow 1959).Google Scholar

Such proposal was explained by Prof. Cooper as early as 1956 at the Annual Meeting of the American Society of International Law and submitted to the Xth ICAO Assembly in Caracas. (Proceedings of the American Society of International Law at its Fiftieth Annual Meeting, Washington, D.C. April 25–28, 1956. Quoted from the “Space Law — A Symposium”. Prepared at the request of Honorable London B. Johnson, Chairman, Special Committee on Space and Astronautics, United States Senate, Eighty-Fifth Congress, Second Session, Washington, 1959, pp. 128-129).Google Scholar

Cooper’s first point, however, is incorrect. His restrictive opinion, concerning the validity of the Chicago Convention cannot be applied to the principle itself of the sovereignty of states over the airspace, from which the Chicago Convention sets out and which is expressly declared in it without any restrictions. For this principle has become a generally recognized principle of international law even before the conclusion of the Chicago Convention (indeed even before the conclusion of the Paris Convention), being an expression of the general principle of the sovereignty of states, on which the whole common international law is based. From the fact that the Chicago Convention regulates civil aviation, which develops in certain, sufficiently dense part of the airspace, it is impossible to infer that it restricts the sovereignty of states only on this part. Regarding the second line, Cooper himself recognized, in a letter to “The Times” of London of Sept. 2, 1957, the necessity of its revision. A serious defect of Cooper’s proposal is that it seems to admit an unrestricted freedom of action beyond the frontier of the contiguous zone and outer space, therefore also such action which is aimed against the integrity and inviolability of the States on the Earth.Google Scholar

Alex Mayer in a discussion to Cooper’s theme (Space Law, p. 134).Google Scholar

Jaroslav Zourek, Jaky je prévni rezim vesmiru?, Czechoslovak Journal of International Law No 1/1959, p. 42.Google Scholar

E. Korovine, O mezhdunarodnom rezhime kosmicheskogo prostranstva, Mezhdunarodnaya zhizn No 1/1959, p. 14. Prof. Vladimir Outrata, International Law, Prague 1960, p. 228. Loftus Becker, the legal adviser of the State Department, in his statement before the Special Senate Committee on Space and Astronautics on May 14, 1958, (Major Aspects of the Problem of Outer Space, Space Law, p. 37).Google Scholar

K voprosu o mezhplanetnom pravye, Sovetskoye Gosudarstvo i Pravo, No 7/1958, p. 55.Google Scholar

See the second of the resolutions accepted to this item at the ILA 48th Conference (International Law Association, Report of the Forty-Eighth Conference held at New York, September 1 to 7, 1958, p. 330).Google Scholar

Therefore it is not also correct to compare the outer space with a kind of “legal vacuum” as e.g. expressed by M. Smirnoff in the document submitted to the First Colloquium on the Law of Outer Space at the IXth Congress of the IAF in the Hague, 1958, “The Need for a New System of Norms for Space Law and the Danger of Conflict with the Terms of the Chicago Convention”.Google Scholar

This substance of the question has been grasped by the Polish author Jerzy Stucki in the article Bezpieczenstwo panstaw a przestrzen kosmiczna, Sprawy miedzynarodoive, No 7-8/1959, p. 96.Google Scholar