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The Air Force Role In Developing International Outer Space Law/Introduction

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Acknowledgement
The Air Force Role In Developing International Outer Space Law
by Delbert R. Terrill, Jr.
Germination of Outer Space as a Legal Concept
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Introduction

In this monograph the author describes the United States Air Force resistance to the passage of international conventions (treaties) and the general impact that Air Force opposition had on the development of international law regarding outer space. International outer space law, like other international law, is created by court decisions (international and domestic), passage (negotiation and ratification) of international treaties or conventions, and commonly accepted practices of nations, which in turn become customs. In addition, the publications by scholars of international outer space law have had a substantial impact on the evolution of this body of law.

Even before space activities had actually begun, academics and jurists pushed for the early passage of certain conventions governing the use of space. The US government, encouraged in large part by the Air Force, chose to delay action until space operations had begun so that these actual activities themselves and the commonly accepted customs derived from them, rather than the theory of jurists, would drive the development of space law. The focus here is on the Air Force’s role in the evolution of outer space law primarily from the mid-1950s to the early 1960s. The author then examines Air Force efforts to preclude an international agreement (treaty) defining sovereignty in outer space similar to the convention[1] (known as the Chicago Convention) defining national airspace that was agreed to at the 1944 meetings of the International Civil Aviation Organization (ICAO) in Chicago. Sovereignty and the delimitation of where airspace ends and outer space begins have been inextricably tied.

Over the years, these two issues have generated much of the debate on outer space law. The first substantive treatise (published in 1951) urged that the development of outer space law focus on the sovereignty issue. Subsequently, authors of numerous articles and proposals sought to establish a clear line of demarcation between outer space and airspace. While military personnel in operational forces may have a gut feeling as to what is outer space, ​ neither international conventions nor customarily accepted practices have established a commonly accepted line of demarcation between these two regions. Although the debate continues about where airspace ends and outer space begins, the issue of whether or not sovereignty may be asserted in outer space has been generally settled by customary practice. There is freedom of passage in outer space and, accordingly, no state may claim sovereignty over outer space.[2]

In response to the early efforts by theorists and academicians to conclude an international outer space convention, the Air Force proposed-and the United States adopted-an ad hoc approach to the creation of international outer space law, reasoning that this approach would allow practice and technology to drive the evolution of the law. Given that the president’s Air Coordinating Committee (ACC) had authority to establish the US position to be presented to the International Civil Aviation Organization (ICAO), the Air Force, as an ACC member, encouraged and obtained the ACC’s adoption of the Air Force position. Accordingly, during sessions of the ICAO, the US opposed several efforts to conclude a convention regarding outer space.[3] The ICAO generally adopted the US position.

Having set this approach in motion during the 1950s, the Air Force, in the following decade, did not playa major role in the development of international outer space law-much to the chagrin of certain members of the Air Force judge advocate general (JAG) corps. While Air Force lawyers had initially encouraged the ad hoc approach, by 1961 the judge advocate general himself expressed discomfort with the reactive posture undertaken by the Air Force. Consequently, he recommended that the Air Force seize the leadership and take a more active role in the development of outer space law, as the Air Force had done in the field of aerospace medicine. The Air Force never followed this advice. It instead remained in the reactive mode; when tasked to do so, the Air Force coordinated and commented on the various international conventions of outer space law being considered.[4] The only other exception to the Air Force’s passive role in the development of the law was an unintended impact resulting from Project West Ford. Because of this project, certain environmental protection ​provisions were included as part of the 1968 Principles Treaty[5] (see chapter 4).

The Air Force’s reactive posture to proposed international conventions was typified by its involvement in the internal US government negotiations leading to the passage of the 1972 Convention on International Liability for Damages Caused by Space Objects. Because of this approach, the Air Force is not perceived as having the legal expertise or reputation in outer space law that it has developed, for example, in the area of aerospace medicine.[6] To capture the nature of this reactive posture, the author describes the Air Force’s participation in these generally internal DOD negotiations in minute detail. No direct evidence indicates that the Air Force’s reactive approach impaired its missions, doctrine, or interests.

The assessment of the US role in the evolution of international outer space law involves an analysis of the US policy formulation process. Determining what if any institutional reputation the Air Force may have lost by not being more active in influencing this policy process or by not being viewed as the US “legal expert” in international outer space law would only be speculative. To determine what, if any, leverage or influence the Air Force has lost would require a more in-depth study of the Air Force’s role in national policy formulation and is beyond the scope of this monograph.

When and where the Air Force outwardly has influenced the development of international outer space law, such involvement has been, predominantly, a result of the efforts of the attorneys assigned to the Air Force Office of General Counsel (OGC) and JAG offices. This monograph does not catalogue the many articles and presentations written or made by these Air Force officials. While such articles and presentations may have influenced the evolution of the law, their impact would be difficult to assess. Instead, this monograph traces the interaction of Air Force officials with the various policy-making levels of government inside and outside DOD during the consideration of proposed international ​ conventions affecting outer space. With the exception of its JAG corps and OGC attorneys, the Air Force has not been particularly active in attempting to influence the development of outer space law. This passivity may be due, in part, to the fact that the impact of other parts of the Air Force on this body of international law is difficult to determine because, generally outside of JAG and OGC, in the 1950s and 1960s Air Force organizations did not carefully document their roles and positions on space law issues.

On the other hand, it must be understood that international outer space law generally evolved from the practice of nations and that the operational forces of the Air Force were and remain the leading US military service impacting outer space matters.[7] When this monograph discusses US military practices regarding outer space, it generally refers to Air Force operational practices. Accordingly, the operational forces of the Air Force established, through their practices rather than by formal statement of their positions, the customs that in turn developed the law.

  1. ↑ Convention on International Civil Aviation
  2. ↑ In 1976, Columbia, the Congo, Ecuador, Indonesia, Kenya, Uganda, and Zaire declared that a geostationary orbit 22,300 miles above earth was part of the sovereign territory of the state under which the orbit lies. The United States, among others, opposed their declaration of sovereignty. The position of this Bogota Declaration has yet to become accepted international law by convention, custom, or practice. Nevertheless, the principle espoused by the declaration is still being debated. See Declaration of Bogota, 3 December 1976, text found in Journal of Space Law (1978), 169.
  3. ↑ As an exception to this general rule, the Air Force strongly supported passage of the convention regarding rescue and return of astronauts (see chapter 6 below).
  4. ↑ By the early 1980s, the Air Force general counsel and JAG began sponsoring the biennial Conference on the Law Relating to National Security Activities in Outer Space. Sponsorship of these conferences over the past 16 years has reflected a subtle change in the Air Force’s posture.
  5. ↑ Treaty on the Principles Governing Activities in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies
  6. ↑ Perhaps, the Air Force reputation and expertise in outer space law is increasing as a result of its sponsorship of the biennial conference regarding national security and the law of outer space.
  7. ↑ DOD Directive 5160.32, Development of Space Systems, promulgated by Secretary of Defense Robert S. McNamara on 6 March 1961, established the Air Force as DOD’s executive agent for space matters. This directive was intended to overcome fragmentation of effort, avoid duplication, and increase efficiency.
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