The impact of the US defense and space initiatives on bilateral and multilateral treaties and on international outer space law in general, a topic of much current discussion, is better understood by an analysis of the development of that body of law. Col. Delbert “Chip” Terrill Jr. discusses its early evolution and the Air Force contribution to it. He describes the Air Force’s ad hoc approach to international outer space law and its efforts to have this approach adopted by the United States and the international community.
Further, the author details the profound impact that the surprise attack at Pearl Harbor on 7 December 1941 had on President Dwight D. Eisenhower. He vowed never again to allow the US to be similarly vulnerable to a surprise attack, particularly in a nuclear environment. As part of his efforts to preclude a surprise attack on the United States, Eisenhower sought to establish the concept of free passage of intelligence gathering satellites as part of accepted international outer space law. The author traces how the Eisenhower administration demonstrated a lack of concern about being first in space so long as the concept of free passage in outer space was universally accepted. However, the administration apparently and clearly underestimated the propaganda value that being first would have. Colonel Terrill traces how the Eisenhower administration failed to fully communicate its policy goal of achieving such free passage to the uniformed services. Although civilian leaders in the Defense Department were aware of the administration’s position, the Air Force and the other military services at times acted at cross purposes to the concept of free passage.
Chip Terrill describes the Air Force’s continued efforts to resist the passage of most international outer space law conventions, the restiveness of the Air Force judge advocate general (JAG) corps with a backseat role, and how the JAG generally failed in its early attempt to have the Air Force become proactive in the development of the law. Ironically, Terrill illustrates how the Air Force’s ad hoc approach essentially dovetailed with Eisenhower’s goal of free passage. Colonel Terrill relates how the Air Force’s Project West Ford caused the passage of certain environmentally sensitive provisions of international outer space law.
The author closes by examining the comment and coordination process leading to the passage of the Liability for Damages Convention.* Such was typical of the Air Force’s lukewarm, reactive posture regarding the passage of international conventions, except for the Agreement on Rescue and Return of Astronauts,† which the Air Force strongly supported.
In short, this superb work documents the interesting gestation period regarding the development of international outer space law. It will undoubtedly contribute to the development of Air Force doctrine by providing a better understanding of the Air Force’s involvement in the development of international outer space law.
/s/Jacob Neufeld, Senior Historian
Air Force History Support Office
† Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Space
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* (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.1
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 Organiztion (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.2 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 play a 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.3 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** (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.4 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.5 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.
** Treaty on the Principles Governing Activities in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies
1. 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 o Space Law (1978), 169.
2. 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).
3. 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.
4. Perhaps, the Air Force reputation and expertise in outer space law is increasing as a result of its sponsorship of the biennial conference reardin national security and the law of outer snace.
5. DOD Directive 5160.32, Development o 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.
Air Force as a Backseat “Driver”
in Space Law Debates
Internal DOD Strife and Movement
toward a National Outer Space Policy
DOD shared joint responsibility with the State Department and NASA for these actions. When compared with NSC 5814/1, the OCB proposal “indicated a slight change of thinking, at least within the confines of NSC, that meant modification of space-for-peace policy along lines a little more favorable to the military” so that the military space program was no longer to be as small as possible. 13
Also in March 1959, Franklyn W. Phillips, acting secretary, National Aeronautics and Space Council (NASC), wrote to President Eisenhower supporting a State proposal that an NASC panel be established to study the technical feasibility of proposals on the use of space vehicles not equipped to inflict injury or damage. A few weeks later Phillips wrote to the secretary of defense and requested DOD appointments for an NASC panel to study such space vehicles. In a letter drafted by Benjamin Foreman, DOD’s assistant general counsel for international affairs, Secretary Quarles responded to Phillips as follows:
It would appear desirable that the United States avoid making any unilateral policy statement binding only on the United States and which might conceivably limit or hamper its own freedom of action. Thus it is to the advantage of the United States that no legal restrictions on the use of outer space be established for at least a period of time sufficient to allow the United States to gain a fuller understanding of the spatial environment and to ascertain the extent to which other nations may want to use space to the disadvantage of the United States.14
In a May 1959 thesis for the Industrial College of the Armed Forces (ICAF) entitled “Astronautical Law,” Col Martin Menter* from the Air Force JAG corps, asserted that the Roman maxim ex facto oritur jus (the law rises from fact) was an appropriate mode for developing the law of outer space.15 While he was more receptive than the Air Force generally to the idea of a space convention, Menter’s use of the Roman maxim dovetailed with the Air Force’s concept of creating outer space law from actual facts or activities, the ad hoc approach, rather than from principles or theories. Colonel Menter’s ICAF thesis was subsequently described by ...
* Menter was later promoted to brigadier general and continued to remain active in the formulation of space law.
Air Force as a Background Player
in the Sovereignty Debate
Subsequently, the State Department announced the language of its resolution regarding outer space; it did not include a definition for outer space. However, State did recommend that the Space Council undertake a review of the question of defining the limits of air and outer space. The Joint Staff represented DOD’s uniformed services in this review.24 At the end of 1961, Adlai E. Stevenson, US ambassador to the United Nations, stated to the General Assembly that a demarcation between air and outer space was “premature.” Underlying the discussion regarding a definition for outer space and the concomitant determination of sovereignty was the fact that US satellites had been orbiting over other nations for approximately three years without objection. Along the line of what Eisenhower had much earlier concluded, attorneys within OSD and the services agreed that the “internationalization” of outer space was in the US national interest and that “peaceful purposes” were consistent with self-defense under the UN charter.25
In February 1962, the JCS, in a memorandum for the secretary of defense, stated two reasons for their opposition to defining outer space: it was premature and it limited military space operations. In a letter to E. C. Welsh, secretary of the National Aeronautics and Space Council, Cyrus Vance restated that DOD’s position remained the setting of a limit on sovereignty was neither necessary nor desired. That spring, Maj Gen John M. Reynolds (USAF), vice director of the Joint Staff, recommended to Foreman, DOD’s assistant general counsel, that the DOD position on the limits of air and outer space was that “international agreement on definition of outer space [was] neither necessary nor desirable at this time. Should a finite boundary be forced upon us, 20 miles or less would be least disadvantageous.” Foreman passed this on to the NASC, which issued its summary of department and agency positions on the issue, noting that none had recommended immediate action for setting an upper limit for airspace.
The line of demarcation issue then lay dormant for several years. By 1964 the generally accepted US position was that satellites orbiting the earth were in outer space.26 The efforts to complete passage of the Treaty on Principles Governing the ...
13. Bowen, 96.
14. Donald A. Quarles, deputy secretary of defense, to Franklyn W. Phillips, acting secretary, National Aeronautics and Space Council, 15 April 1959.
15. Col Martin Menter, “Astronautical Law” (thesis, Industrial College of the Armed Forces, Fort Lesley J. McNair, Washington, D.C., May 1959), 68-69.
24. If direct service input was provided, no documentation has surfaced
to support such input.
25. Carroll, 7.
26. L. Niederlehner, acting DOD general counsel, to president, Naval
War College, 30 October 1964. Niederlehner cites Richard N. Gardner,
assistant secretary of state for international organization affairs, letter to
private attorney, 16 March 1964.
Maj Gen Albert M. Kuhfeld
and Air Force Leadership
of Space Law Development
Internal DOD Strife and Movement
toward a National Outer Space Policy
In a December memorandum to General Montgomery, General Kuhfeld continued to push the symposium and recapped the prior year’s activities regarding outer space law. Additionally, Kuhfeld reiterated his belief that the Air Force, relying on its mix of scientists and lawyers, should take the lead on the matter. He informed Montgomery that, since preparing his initial proposed briefing for the Air Force Council, “events have occurred, or are programmed, which appear to be fast drawing to an end the academic nature of many aerospace law problems. The current impetus is to seek solution to these problems.” General Kuhfeld listed numerous events that had occurred between April and October 1961 that substantiated his assertions. He argued that, just as the Air Force had sent JAG officers to McGill University for advanced study in international law, it should send officers to study at the incipient Institute of Aerospace Law at the University of Virginia Law School.
Finally, General Kuhfeld described recent relevant actions taken at the UN. These events included the first ever meeting of the Committee on the Peaceful Uses of Outer Space (COPUOS) on 27 November and US sponsorship of a resolution setting forth proposals for an international agreement on outer space activities. The latter proposed a COPUOS study and recommendation for the resolution of related legal problems. Kuhfeld related that the Department of State had asked that the National Aeronautics and Space Council (NASC) assist in defining the line of demarcation between air and outer space. He noted that NASC was already working on the issue. Concerned that the Air Force was not more on top of the issue, General Kuhfeld noted:
As “aerospace” is the media of Air Force operations, the Air Force has a vital interest in the resolution of this problem. It is not a problem that is answered by the lawbooks, but one that may be resolved at the conference table. Hence, the solution arrived at will depend upon the views presented for consideration by each nation’s representatives. While we assume the U.S. position will not be in conflict with Air Force concepts as to the nation’s best interests, the Air Force—if it has not already done so—should consider the problem to assure that those who decide have all the factors that it believes should be considered together with its studies recommendations.10
He observed that, while science was moving rapidly, nothing yet had been achieved that would cause him to change his position that there need be no line of demarcation drawn between air and outer space. He concluded that, “if the Air Force is going to influence trends in this area, it must take a positive position soon.” Finally, General Kuhfeld indicated that Colonel Menter from the USAF JAG was assigned to the Federal Aviation Administration and available to discuss the issues and to assist regarding the symposium.11
10. Kuhfeld to Gen Richard M. Montgomery, memorandum, subject: Formulation of Air Force Positions in Aerospace Law, 8 December 1961.
11. Ibid., 7.