The Air Force Role in Developing

International Outer Space Law

DELBERT R. TERRILL JR., Colonel, USAFR

Air Force History and Museums Program

Air University Press

Maxwell Air Force Base, Alabama

May 1999
Disclaimer

Opinions, conclusions, and recommendations expressed or implied within are solely those of the

author and do not necessarily represent the views of Air University, the United States Air Force,

the Department of Defense, or any other US government agency. Cleared for public release,

distribution unlimited.

ii
For USAFA ’70

Contents

Chapter Page

DISCLAIMER . . . . . . . . . . . . . . . . . . . ii

FOREWORD . . . . . . . . . . . . . . . . . . . ix

ABOUT THE AUTHOR . . . . . . . . . . . . . . . xi

ACKNOWLEDGMENTS . . . . . . . . . . . . . . xiii

INTRODUCTION . . . . . . . . . . . . . . . . . xv

 1 GERMINATION OF OUTER SPACE

AS A LEGAL CONCEPT . . . . . . . . . . . . . . 1

Eisenhower, a Nuclear Pearl Harbor,

 and Air Force Balloons . . . . . . . . . . . . 3

“Space-for-Peace” and the International

 Geophysical Year . . . . . . . . . . . . . . . 6

Who Would Be First in Space? . . . . . . . . . 10

Notes . . . . . . . . . . . . . . . . . . . . . . 13

 2 AIR FORCE OPPOSITION TO INTERNATIONAL

CONVENTIONS ON SPACE . . . . . . . . . . . . 19

Early Air Force Actions Affecting

 Outer Space Law . . . . . . . . . . . . . . . 19

Air Force Actions before and

 after Sputnik . . . . . . . . . . . . . . . . . 27

Project RAND: Supporting the

 Air Force Position . . . . . . . . . . . . . . . 35

Notes . . . . . . . . . . . . . . . . . . . . . . 39

 3 AIR FORCE AS A BACKSEAT “DRIVER”

 IN SPACE LAW DEBATES . . . . . . . . . . . . 45

Internal DOD Strife and Movement

 toward a National Outer Space Policy . . . . . 46

Air Force as a Background Player in the

 Sovereignty Debate . . . . . . . . . . . . . . 54

Notes . . . . . . . . . . . . . . . . . . . . . . 60

v
Chapter Page

 4 PROJECT WEST FORD . . . . . . . . . . . . . . 63

Notes . . . . . . . . . . . . . . . . . . . . . . 67

 5 MAJ GEN ALBERT M. KUHFELD AND

 AIR FORCE LEADERSHIP OF SPACE

LAW DEVELOPMENT . . . . . . . . . . . . . . . 69

Notes . . . . . . . . . . . . . . . . . . . . . . 78

 6 THE 1972 LIABILITY FOR DAMAGES

 CONVENTION . . . . . . . . . . . . . . . . . . 81

Notes . . . . . . . . . . . . . . . . . . . . . . 89

EPILOGUE . . . . . . . . . . . . . . . . . . . . 93

Appendices

 A Air Staff Reaction to Project RAND Report

 Dated 28 October 1957 . . . . . . . . . . . . . . 97

 B Conclusions of the Air Doctrine Branch Study,

 8 October 1958 . . . . . . . . . . . . . . . . . . 101

 C Excerpts from The Operations Coordinating

 Board’s “Operations Plan For Outer Space,”

18 March 1959 . . . . . . . . . . . . . . . . . . 105

 D Conclusions of Colonel Martin Menter’s Thesis,

 “Astronautical Law,” May 1959 . . . . . . . . . . 109

 E “Ten Precepts” General Albert M. Kuhfeld,

 January 1962 . . . . . . . . . . . . . . . . . . 115

GLOSSARY OF TERMS . . . . . . . . . . . . . . 119

GLOSSARY OF PEOPLE . . . . . . . . . . . . . . 121

vi
Photographs

Page

Professor John Cobb Cooper and first graduating

class of Institute of Air and Space Law, McGill

University, Montreal, Canada . . . . . . . . . . . . . 2

50th anniversary edition of RAND’s Preliminary

Design of an Experimental World-Circling Spaceship . . . 4

President Eisenhower, General Twining, and

Secretary of State Dulles . . . . . . . . . . . . . . . . . 7

Secretary of Defense Charles Wilson . . . . . . . . . . . 10

Secretary of the Air Force Donald A. Quarles . . . . . . . 11

Assistant Secretary of War for Air

Robert A. Lovett . . . . . . . . . . . . . . . . . . . . . 20

Assistant Secretary of the Air Force

Dudley C. Sharp . . . . . . . . . . . . . . . . . . . . . 24

Maj Hamilton DeSaussure and

Maj Gen Albert M. Kuhfeld . . . . . . . . . . . . . . . . 26

Daggett Howard and James Douglas . . . . . . . . . . . 32

Gen Thomas D. White . . . . . . . . . . . . . . . . . . 39

Secretary of Defense Neil H. McElroy . . . . . . . . . . . 46

Lt Gen Donald L. Putt and Col Carl J. Reber . . . . . . . 47

Pin-on ceremony, Brig Gen Martin Menter . . . . . . . . 51

Deputy Secretary of Defense Cyrus R. Vance . . . . . . . 55

Lt Gen Richard M. Montgomery . . . . . . . . . . . . . 72

Gen Curtis E. LeMay and

Maj Gen Albert M. Kuhfeld . . . . . . . . . . . . . . . . 75

Brig Gen Richard C. Hagan . . . . . . . . . . . . . . . 77

Will H. Carroll . . . . . . . . . . . . . . . . . . . . . . 82

vii

Foreword

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,

ix
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.

*

 Convention on the International Liability for Damage Caused by Space Objects

†

 Agreement on the Rescue of Astronauts, the Return of Astronauts and the

Return of Objects Launched into Space

Jacob Neufeld, Senior Historian

Air Force History Support Office

x
About the Author

Delbert R. “Chip” Terrill Jr. is an administrative law judge

with the United States Federal Energy Regulatory Commission. Judge Terrill is a colonel in the USAF Reserves and

serves as a historian with the Air Force Historical Research

Agency, Maxwell Air Force Base (AFB), Alabama. He received a

BS degree (majoring in history) from the United States Air

Force Academy in 1970 and a JD degree in 1974 from the

Georgetown University Law Center. Judge Terrill has worked

at the White House and on Capitol Hill, and with the Office of

US Special Counsel. He has served as a special assistant US

attorney and as a department counsel and hearing examiner

(now administrative judge) with the Department of Defense

(DOD) Legal Services Agency’s Directorate for Industrial

Security Clearance Review (now Office of Hearings and

Appeals). While in the Air Force Reserve, he previously served

at the Department of Legal Medicine, Armed Forces Institute

of Pathology, and the Office of the Surgeon General of the Air

Force. He is a graduate of the Air War College (outstanding

graduate), the Armed Forces Staff College, and the Air Force

Squadron Officer School. In February 1994 and July 1997,

Colonel Terrill attended the Sixth and Seventh Biennial

Conferences on the Law Relating to National Security

Activities in Outer Space. His prior publications include

“Complaint Procedures Initiated by and Against Federal

Administrative Law Judges Need Reform Now,” Judge’s

Journal (Fall 1994); Chapter Two “The Patient, the Hospital

and the Law,” Lawyers Medical Cyclopedia (Allan Smith

Publishing Company, 1981); and “The New Copyright Law:

How It Affects Physicians,” The Journal of Legal Medicine

(1977).

xi

Acknowledgments

I would like to thank the individuals who assisted me in the

research and preparation of this monograph. Will H. Carroll,

Prof Harry H. Almond Jr., and Brig Gen Martin Menter, USA F,

Retired, all provided invaluable interviews and documents.

Robbie Profitt of the Federal Aviation Administration assisted

me in locating crucial Air Coordinating Committee papers.

Mrs. Albert M. Kuhfeld provided me access to her husband’s

files. Eilene Galloway allowed me to pick her brain periodicall y.

R. Cargill Hall provided me early access to his insightful works

analyzing the origins of US space policy, which explain in

detail the Eisenhower administration’s thinking and efforts to

assure acceptance of its “freedom of space” policy. The officials

of the Air Force Historical Research Agency, Maxwell Air Force

Base, Alabama, graciously allowed me the flexibility of

completing this long-term project as a part of my agency

duties. The librarians at the National Academy of Sciences

and the archivists at the National Records Center and the

National Archives and Records Administration were always

helpful and pleasant. Most importantly, thanks are due to

Jacob Neufeld, who guided the direction of my research and

my writing and whose welcomed red pen was always ready

and on the money, and to Thomas C. Lobenstein and Peggy

Smith, my Air University Press editors, for their willingness to

put up with my last-minute additions and changes. Thanks

also to Karen Fleming-Michael for reading, copyediting, and

logistic support. Finally, thanks to James Howard and

Richard Wolf who prevented the succeeding generations of

computer software programs from disorganizing the iterations

of this monograph and who thereby kept me sane.

xiii

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* (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

*

 Convention on International Civil Aviation

xv
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

xvi
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

*

 Treaty on the Principles Governing Activities in the Exploration and Use of

Outer Space, Including the Moon and Other Celestial Bodies

xvii
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.

Notes

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 of 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

regarding national security and the law of outer space.

xviii
5. 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.

xix
Chapter 1

Germination of Outer Space

as a Legal Concept

The Paris and Chicago Conventions of 1919 and 1944,*

respectively, recognized the exclusive sovereignty of states to

the airspace above their territory. Delegates did not discuss

outer space as such. Thus they established no line of

demarcation as to where airspace ended and outer space

began. Whether national sovereignty extended indefinitely over

a nation’s territory was not resolved. 1

Even with the rapid changes in technology extending flight

higher and higher, sovereignty over outer space was seldom

discussed until the early 1950s. By then the launching of

rockets into space and plans to boost an object into orbit made

discussion of this issue more imperative. As has often occurred,

not until technology demands does a development in or of the

law follow. From the beginning, the sovereignty issue—how high

a state’s sovereignty extends, if at all, into outer space—has

been the genesis of much discussion regarding outer space law.

While many other outer space law issues were eventually

resolved, the issue of how high sovereignty extends—the issue

that started much of the discussion—remains unresolved.

In 1951 John Cobb Cooper—law professor and head of the

Institute of Air and Space Law, McGill University in Montreal,

and a member of the Princeton University Institute for Advanc ed

Study—published “High Altitude Flight and National Sovereignty,” a seminal and thought-provoking treatise. 2

 Professor

Cooper had served as part of the US delegation to the 1944

ICAO meetings and was a major force behind the decision to

conclude the Chicago Convention. His 1951 treatise generated

substantial discussion within the legal and scientific communities regarding the need to define where airspace became

outer space.3

* International Convention for Air Navigation and Convention on International Civil

Aviation, respectively

1
Cooper’s article led to a clamor by academics and

international jurists for a definition of outer space. Their

efforts to achieve a clear delimitation between airspace and

outer space were driven by the hope that outer space might be

“saved from the chaos of national rivalries.” 4

 They theorized

that once outer space was defined by international agreement,

all claims regarding it would be easily resolved. These scholars

and jurists likewise theorized that freedom of exploration in

outer space would evolve similarly to the exploration of the

sea. Otherwise, it was feared that the “outcome of the growing

interest in outer space [would] result in a constantly

A-1

Professor John Cobb Cooper and first graduating class from McGill

University’s Institute of Air and Space Law. From left to right: David Upsher

(Canada), unidentified, Ming-Min Peng (Taiwan), Ishmael Abdulmonein (Egypt,

partially obscured behind Peng), Ian McPherson (Canada), Jean Nemeth

(Hungary), Dean Meredith (dean of McGill’s Law School), Hamilton DeSaussure

(United States), Dr. Cooper, Constantine Vaicoussis (Greece), Dr. Julian

Gazdik (Poland, Institute’s associate director), John Fenston (Canada), and

Niky Hesse (Germany)

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

2
increasing clash of interest between those states most

interested in outer space, and between [their] citizens.” 5

 Prince

Welf Heinrich of Hanover of the Gesellschaft für

Weltraumforschung6

 (the [German] Society for Space Flight)

noted that nations did not have the same needs and interests

in outer space as they had in airspace. He further noted that

nations could not control (police) outer space even if they

declared outer space as being part of their sovereignty. Thus,

he argued that sovereignty should not extend into outer

space.* Prince Heinrich argued that a resolution of the

boundary between airspace and outer space was, however,

needed to assure the freedom of exploration in outer space. 7

 If

they did not resolve the sovereignty issue, nations would likely

make territorial claims based on the landing of scientific

devices on bodies in outer space. 8

Eisenhower, a Nuclear Pearl Harbor,

and Air Force Balloons

Prior to Professor Cooper’s treatise, many elements within

the United States, including the US Army Air Forces (AAF),

had been interested in outer space and its potential

exploitation for military or intelligence purposes. Concurrent

with Project RAND’s start up in 1946, Maj Gen Curtis E.

LeMay, deputy chief of staff for research and development,

directed that RAND assist the AAF in demonstrating its

capabilities vis-à-vis space. Within three weeks, RAND

produced a study titled Preliminary Design of an Experimental

World-Circling Spaceship, an engineering analysis of satellite

feasibility. This 1946 study concluded that such satellites

were an unlikely base for offensive weapons. 9

By April 1951, Project RAND had completed an Air Force

sponsored study contemplating the eventuality of earth

observation satellites. As a result of the RAND report and

because the Air Force Strategic Air Command needed assistance

in developing reconnaissance that could help determine

* Heinrich completed his doctor of law thesis entitled “Air Law and Space” in 1953

while at Georg-August University in Göttingen, Germany. His doctoral thesis was a

continuation of the work initiated in the 1930s by Vladimir Mandl.

GERMINATION

3
appropriate targets behind the

Iron Curtain, the Air Force, in

January 1952, convened a

Beacon Hill study group (formally titled Project Lincoln)

under the auspices of the Massachusetts Institute of Technology (MIT).10 The study group

was to assess various issues

generated by such satellites.

The study group included industry scientists and academicians.11 In its final report issued

in June 1952, the Beacon Hill

group concluded that observation satellite systems could infringe on another country’s sovereignty. Its report specifically

acknowledged the potential for

“intrusion” over Soviet territory.12

On 24 February and 27 March 1954, President Dwight D.

Eisenhower met with his National Security Council (NSC) and

then with the civilian scientists of the Science Advisory

Committee in the Office of Defense Mobilization. With the

memory of Pearl Harbor still fresh in his mind, Eisenhower

related his concern regarding the potential for a surprise

nuclear attack on the United States. 13 Stressing the need for

avoiding or containing such aggression, President Eisenhower

was resolved to ensure that the United States would never

again be vulnerable to a direct sneak attack. 14 He challenged

the US scientific community to address his concern. In

response, scientists created the Surprise Attack Panel—later

known as the Technological Capabilities Panel (TCP)—chaired

by MIT president James R. Killian. 15 The panel issued its final

report, “Meeting the Threat of Surprise Attack,” on 14

February 1955. Among other things, the report recommended

that the United States develop satellites to operate at high

altitudes. These satellites would establish as a principle of

international law the freedom of passage for any subsequent

military satellites.16 The panel had created a blueprint for

Cover of Preliminary Design of an

Experimental World-Circling

Spaceship

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

4
Eisenhower as to how the US should proceed regarding

resolution of the freedom of passage issue.

Given a lack of intelligence regarding the Union of Soviet

Socialist Republics (USSR) and given that the United States

was not able to implement the reconnaissance satellite system

envisioned by the TCP, President Eisenhower initiated Project

Genetrix in January 1956. This space “research” project

consisted of the Air Force launching 516 Skyhook “weather”

balloons from locations in Europe.17 These balloons carried

automatic cameras. Given prevailing winds, the balloons were

certain to pass over Eastern Europe and the USSR. If the

research succeeded, the balloons—equipped with radio

tracking beacons—were eventually to be recovered near Japan

and Alaska. The program produced limited intelligence. 18

When the balloons passed over their territory, Eastern

European nations and the USSR protested, complaining that

the balloons disrupted civilian aircraft and were equipped for

automatic aerial photography in an effort to obtain targeting

information. Belgium and Czechoslovakian airlines canceled

several flights to Czechoslovakia because of the balloons. The

United States initially admitted that Radio Free Europe, an

affiliate of a “privately financed anticommunist organization in

the US,” was flying propaganda balloons from West Germany.

Further, the Air Force admitted that as part of Operation

Moby Dick, it had released some two thousand balloons from

various sites around the earth but denied that these releases

were a threat to civilian flights. 19

On 7 February 1956, Secretary of State John Foster Dulles

responded to the Soviet protests by stating that, in the

interest of “decent friendly relations,” the US would “try” to

stop the release of the “weather” balloons. While admitting

that some of the weather balloons carried photographic

equipment, the United States asserted that the equipment was

only for taking pictures of high-altitude cloud formations. 20

The Soviets responded that they had developed film from the

balloons containing pictures of Turkish airfields. 21 In the face

of criticism that the balloons clearly violated the USSR’s

airspace, Dulles agreed to stop releasing them. He noted,

however, that “the ownership of upper air” was “a disputable

question under international law.”22 Some in the media

GERMINATION

5
attacked Dulles for making this statement and for having

approved the launch of the balloons.

These critics argued that the sovereignty issue had long

been resolved and that sovereignty extended indefinitely into

the sky. Further, they argued that the Chicago Convention

forbade the sending of unmanned missiles over another

nation’s airspace without consent. The position of these critics

was correct with respect to a nation’s sovereign rights over its

own airspace. However, no international law, practice, or

custom had as yet established the issue of a nation’s

sovereignty in outer space. Further, the position of these

critics was diametrically opposed to Eisenhower’s goal of

achieving freedom of passage for intelligence gathering

satellites in outer space as had been initially envisioned by the

Surprise Attack Panel.

After Dulles’ response, the Air Force disputed that its balloons

were intended for anything other than charting the jet stream. 23

The Air Force cover story stating that the balloons “were being

used for weather research also made reference to the

International Geophysical Year (IGY).”24 When the Air Force later

proposed to release even higher flying balloons in mid-March

1956, Eisenhower informed Gen Nathan F. Twining, Air Force

chief of staff, that he (Eisenhower) “was not interested in any

more balloons” and terminated any further launches. 25

In the meantime, a more promising avenue of gathering

information, the U-2, was becoming operational and would

make its maiden flight five months after Eisenhower ordered

an end to the balloon flights. 26 By 1956 the practices of the Air

Force and others involved in the balloon “experiments” and

the contemplation of an earth orbiting observation system had

focused substantial attention on and begun a dialogue

regarding international outer space law.

“Space-for-Peace” and the

International Geophysical Year

Driven by the advent of IGY—1 July 1957–31 December

1958—and other considerations, the United States and the

USSR increased their focus on their respective space

programs.27 On 15 April 1955 the USSR announced the

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

6
establishment of its Special Commission for Interplanetary

Communications, making reference to a globe circling satellite

program.28 In 1955 the US was completing the formulation of

its first space policy, but it did so in a somewhat ambivalent

manner. The United States assumed that its space program

was technologically superior to the USSR’s space program.

Indeed, the US was far ahead of the Soviets in miniaturizing

its warhead devices (which fact was highly classified at that

time); however, as discussed later, this US advantage was to

become a double-edged sword.

President Dwight D. Eisenhower, Gen Nathan F. Twining, and Secretary of

State John Foster Dulles

GERMINATION

7
In drafting its space policy, the Eisenhower administration

demonstrated an ambivalent desire to be first in space. Such

ambivalence by Eisenhower was not unique to outer space but

was generally the hallmark of Eisenhower’s approach to

problem solving, particularly and ironically regarding issues

relating to foreign affairs.29 For example, Eisenhower pursued

a space-for-peace policy and proposed to rely upon nonexistent

“nonmilitary” boosters as the launch vehicle. As drafted by Air

Force secretary Donald A. Quarles,* this policy declared that

the IGY satellite program would not interfere with intercontinental and intermediate range ballistic missile (ICBM and

IRBM) programs. The US satellite would be launched for

“peaceful purposes” and would assist in establishing the right

of unimpeded overflights in outer space. 30 This decision was

confirmed by the National Security Council (NSC Directive

5520, Draft Statement of Policy on US Scientific Satellite

Program) on 26 May and approved by President Eisenhower

on 27 May 1955. However, the administration did not

immediately communicate this decision to the military

services,31 one of which was to be assigned to manage the

development of the boosters.32

By pursuing a space-for-peace policy, President Eisenhower,

at least publicly, began a persistent effort by his administration to marry space exploration, disarmament, and the

creation of international law, providing that space was free

from national military rivalries.33 As noted earlier, underlying

Eisenhower’s space-for-peace policy was his resolve to prevent

a nuclear Pearl Harbor. Following the blueprint provided by

the Surprise Attack Panel, he sought to obtain a free passage

for intelligence-gathering satellites in outer space as being

essential to preventing a surprise attack. Therefore, while

publicly articulating a space-for-peace policy, Eisenhower

maneuvered to obtain freedom of passage for intelligencegathering devices in outer space. 34 He saw no inconsistency in

his stalking-horse strategy.

* Quarles served as assistant secretary of defense for research and development

from September 1953 to August 1955. He then served as secretary of the Air Force

from August 1955 to April 1957 and became deputy secretary of defense in April 1957

and served in that capacity until May 1959.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

8
While the product of such intelligence-gathering satellites

could clearly be used to facilitate warfare by identifying

targets, Eisenhower perceived that the satellites were passive

not “offensive” and argued that it was his intent that they be

used to maintain peace. As part of his “open skies” proposal,

Eisenhower offered to share such intelligence with the Soviets

much the same as President Ronald W. Reagan would propose

30 years later. Eisenhower hoped that the free passage of IGY

scientific satellites in outer space would establish the preced ent

of free passage for subsequent intelligence-gathering satellites.35

Accordingly, the Eisenhower administration worked to ensure

that an earth satellite project was included as part of the US

IGY program.36

While maneuvering to include a scientific satellite system as

part of IGY, President Eisenhower waited until the Geneva

summit with Soviet premier Nikita Khrushchev in July 1955

to propose the US open skies position. 37 Eisenhower suggested

that as part of open skies the United States and USSR provide

facilities from which aerial photography taken of the other

could be shared, thereby precluding any surprise attack. The

USSR rejected the open skies proposal as a ploy for gathering

target data.38 The USSR stuck to its claim of absolute

sovereignty of all its space (air and outer) over its homeland. 39

Upon returning to the United States from Geneva, President

Eisenhower announced officially on 29 July 1955 that the

here-to-fore undisclosed US IGY satellite project was to be

powered by nonmilitary boosters that had not yet been built. 40

In September 1955 the Navy’s proposal to manage the

“civilian” IGY booster program was approved. Neither

President Eisenhower nor his advisers appear to have

appreciated how much their idealistic insistence on developing

nonmilitary boosters would delay the American satellite

project and what the impact of that delay would be. 41 No IGY

boosters were ever fully developed and launched under the

Navy’s Viking-AerobeeHi/Vanguard program.42 However, the

military services did not cease working on their boosters and

continued to attempt to launch them. 43 When the Navy’s

Vanguard program ebbed, the secretary of defense turned too

late to the Air Force in hopes of launching a satellite during

the IGY program.44

GERMINATION

9
Who Would Be First in Space?

Some have concluded that the USSR was first in space by

default because of Eisenhower’s “ambivalence” and his

secretary of defense’s penchant for fiscal conservatism

regarding space programs.45 These factors might partially

explain why the United States failed to be first in space. Other

factors explain why the USSR was first in space with Sputnik.*

First, Eisenhower had been assured that physics precluded

dropping a bomb from a satellite in orbit; therefore, he was

not concerned about a surprise attack from outer space.

Second, the Eisenhower administration did not fully

appreciate the “psychological shock value” of a successful

Sputnik launch or the reaction of the American people to

having Sputnik overhead.46 Third, Eisenhower’s administration

did not appreciate fully the propaganda and prestige value of

being “first in space,”47 despite warnings to this effect by the

National Security Council, the

scientific community’s TCP,

and RAND. Finally, and

probably most importantly, the

US was not first in space

because the US held a significant lead over the USSR in

miniaturizing its hydrogen

bomb devices.

While Eisenhower was concerned about a nuclear surprise

attack, the main emphasis of the

US missile program (including

budgetary spending) was not

the launching of a satellite into

space but the precise delivery of

a hydrogen warhead anywhere

on earth. Because of its miniaturization advantage, the United

States did not need rockets

A-2

Secretary of Defense

Charles E. Wilson

* Sputnik as used hereafter refers specifically to the spaceflights of Sputniks I and

II not to the general term sputnik, which is the Russian word for satellite.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

10
with heavy throw weights

(thrust). In fact, in the years

before Sputnik, the Air Force

had actually reduced the

number of stages in its Atlas

program. Because the USSR

warhead devices were larger and

heavier, they required the

concomitant development of

rockets with greater thrust than

did the US devices. While the

United States was ahead in

being able to deliver a hydrogen

warhead more precisely anywhere on earth, the USSR had

rockets with greater thrust and

throw weights that were

advantageous for launching

objects into outer space. The

US focus on attaining a technological/miniaturization advantage

was disadvantageous to its being first in space.48

Given the underestimation of the “shock effect” of Sputnik,

given the perception that we were technologically far ahead of

the USSR in space, and given Eisenhower’s interest in

establishing the principle of freedom of passage for spy

satellites, the failure to push such a crash program is

understandable. Nonetheless, it was probable that the US

could have been first in space had the president established

that achievement as a national goal. 49 As an example of his

administration’s commitment to ensuring the principle of free

passage in outer space, the Eisenhower administration

(Quarles) in 1956 “restrained” government officials from any

public discussion of spaceflight.50 Eisenhower administration

officials feared that any discussion of military space

operations would engender a “worldwide debate” on outer

space law issues. They further feared that the debate might

result in efforts to preclude the passage in outer space of

military related devices.51

Despite Eisenhower’s “civilian” emphasis in the booster

program, the military had not ceased development of its

A-3

Secretary of the Air Force

Donald A. Quarles

GERMINATION

11
boosters. In fact, prior to Sputnik I, the military continued to

attempt to launch military boosters that would have been

necessary to launch such a satellite into orbit. These efforts

failed.52 The Air Force, like the other services, had continued

in its efforts to develop multistage rockets. Not until November

1956, when Secretary of the Air Force Quarles issued his

order and indicated that no US military satellite would

precede a civilian scientific satellite into orbit, did the Air

Force cease all vehicle construction and intentionally put its

space efforts on hold. 53

Determining whether Quarles and the Eisenhower administration purposely delayed orbiting a satellite is

problematic. Some complained that Eisenhower delayed

because he wanted to wait for the development of nonmilitary

boosters instead of using existing military boosters. Had the

Eisenhower administration clearly indicated to the military

services that it desired to be first in space with a satellite, the

military might have designed a booster strictly for that

purpose. But for the space-for-peace policy, the Eisenhower

administration might well have implemented a “crash”

program to develop a nonmilitary booster. To conclude that

President Eisenhower’s space-for-peace proposal, by itself,

allowed the USSR to be “first” is speculative at best.

Nevertheless, it appears that Quarles was perhaps willing to

accept the USSR being first in space so long as the freedom of

passage in space principle was established as a result. 54

The Eisenhower administration’s initial response to the two

Sputniks was to advance with same due deliberation as it had

been proceeding and to treat the Soviet achievement as being

“no big deal,” in the current vernacular. Eisenhower did

perceive a need to demonstrate some success in the missile

programs and appointed a panel to study the US missile

program. The “fevered tone” and substance of the resulting

report of the Security Resources Panel 55 (known as the Gaither

Report) helped generate public pressure that caused President

Eisenhower to agree to increased spending on missile

programs. While a long-term salient impact of the report was

increased emphasis on better scientific education and basic

research, the Gaither Report also helped give rise to the

misperception of a “missile gap” between the United States

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

12
and the USSR. The USSR may have been ahead in developing

satellites and some aspects of missile development, that is,

thrust. However, as discussed above, the US was ahead in

many important aspects regarding the delivery of weapons of

mass destruction by missiles.56

Notes

1. Sir Arnold Duncan McNair, Michael R. E. Kerr, and Robert A.

MacCrindle, The Law of the Air, 2d ed. (London: Stevens, 1953), appendix,

295–328, cited in Lee Bowen, “An Air Force History of Space Activities

1945–1959” (Washington, D.C.: USAF Historical Division Liaison Office,

August 1964), 59; and Col Martin B. Schofield, USAF, “Control of Outer

Space,” Air University Quarterly Review 10, no. 1 (Spring 1958): 93–104.

2. John Cobb Cooper, “High Altitude Flight and National Sovereignty,”

International Law Quarterly Review 4 (July 1951): 411–18.

3. Bowen, 58–59.

4. Ibid.

5. Welf Heinrich, Prince of Hanover, Gesellschaft für Weltraumforschung,

“The Legal Problems of Space,” trans. Robert W. Schmidt (Maxwell AFB,

Ala.: Documentary Research Division, Research Studies Institute, 1953), 1.

6. The society, founded by the well-known German-Romanian scientist/

mathematician Hermann Oberth, among others, in 1927, eventually

became the most influential of the European rocket societies. See David N.

Spires, Beyond Horizons: A Half Century of Air Force Space Leadership , rev.

ed. (Maxwell AFB, Ala.: Air University Press, 1998), 5.

7. Heinrich, 2–7.

8. Bowen, 61. Bowen cites “Space Law,” a symposium prepared at the

request of Senator Lyndon B. Johnson, chairman, Senate Special

Committee on Space and Astronautics, 85th Cong. 2d sess. 31 December

1958, 129 (hereafter “Space Law”), which in turn cites Oscar Schachter,

“Who Owns the Universe?” in Corneilus Ryan, ed., Across the Space

Frontiers (New York: Viking Press, 1952).

9. Project RAND began operating in May 1946 and was initially an

independent consulting contractor of the Army Air Forces with Douglas

Aircraft Company in Santa Monica, California. RAND was created in 1946

at the direction of Gen Henry H. “Hap” Arnold, commanding general of the

US Army Air Forces (AAF). In 1948 Project RAND was reorganized as a

nonprofit consulting firm, the RAND Corporation. In 1949 and again in

1951, RAND published studies titled, “Utility of a Satellite Vehicle for

Reconnaissance.” Over the years, RAND has produced a series of studies for

the Air Force and the National Aeronautics and Space Administration

(NASA). Between 1946 and 1956, little was accomplished in the actual

development of a satellite as contemplated by RAND due in part to fiscal

restraints, skepticism within the scientific community, and interservice

GERMINATION

13
rivalries. Such rivalry was typified by LeMay’s 1946 request to RAND and

other actions. (Spires, 14–24.) These rivalries continued into the 1950s with

guided missiles spawning contentions. Robert J. Watson, Into the Missile

Age, 1956–1960, vol. 4, History of the Office of the Secretary of Defense

(Washington, D.C.: Historical Office, Office of the Secretary of Defense,

1997), 40–41. Concurrent development of a booster to launch such a

satellite into orbit had not progressed very far and for many of the same

reasons.

10. Gregory W. Pedlow and Donald E. Welzenbach, The CIA and the U-2

Program, 1954–1974 (Langley, Va.: Center for Study of Intelligence, Central

Intelligence Agency, 1998), 17.

11. Air Force Lt Col Richard S. Leghorn, who would later be

instrumental in creating Eisenhower’s open skies policy, was the Air Force

liaison to the study group. In 1946 and 1948 he had presented papers

arguing that the United States should develop a high-altitude strategic and

tactical reconnaissance capability. Leghorn, an MIT graduate, had served as

an Army Air Forces reconnaissance officer in Europe during World War II.

After the war, he worked for Eastman Kodak but was recalled to active duty

during the Korean War. Initially, in April 1951, he became the head of the

Reconnaissance Systems Branch of the Wright Development Command,

Dayton, Ohio, but in early 1952 was assigned to the Pentagon staff of Col

Bernard A. Shriever, assistant for development planning to the Air Force

deputy chief of staff for development. In the latter position, Leghorn helped

lay the groundwork for what would eventually become the U-2. Members of

the study group included Chairman Carl F. P. Overhage (Eastman Kodak),

Edward M. Purcell (Harvard University), Saville Davis (Christian Science

Monitor), Allen F. Donovan (Cornell Aeronautics Laboratory), Peter C.

Goldmark (Columbia Broadcasting System Laboratories), Edwin H. Land

(founder, Polaroid Corporation), Stewart E. Miller (Bell Laboratories),

Richard S. Perkin (Perkin-Elmer Company), and Louis E. Ridenour

(Ridenour Associates), Pedlow and Welzenback, 4, 6–7, 18.

12. R. Cargill Hall, “Origins of US Space Policy: Eisenhower, Open Skies,

and Freedom of Space,” Colloquy (December 1993), 19.

13. Ibid. Eisenhower was not the first United States official to express

concern about a nuclear Pearl Harbor. Gen Henry H. “Hap” Arnold,

commanding general of the AAF, had expressed the same concern nearly 10

years earlier. See Spires, 30.

14. While Eisenhower may have feared a nuclear surprise attack, the

primary focus of the US ballistic missile program, even under Eisenhower,

was never the launching of a space satellite for intelligence purposes, but

rather the creation of a system to deliver a hydrogen warhead on target

anywhere on earth.

15. The Surprise Attack Panel’s membership was drawn from the US

scientific and engineering communities, including many who had served on

the Beacon Hill Study Group. During the time the TCP/Surprise Attack

Panel was meeting, the Air Force continued to move forward with a program

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

14
to develop a reconnaissance satellite system. On 27 November 1954, the Air

Force’s Research and Development Command had made the decision to

pursue a satellite system and on 16 March 1955 had completed a formal

statement of objectives. Hall, “Origins,” 20. Also see “USAF Space Programs,

1945–1962” (Maxwell AFB, Ala.: USAF Historical Division Liaison Office,

undated), 9–10.

16. Hall, “Origins,” 19–20.

17. Pedlow and Welzenback, 85.

18. Hall, “Origins,” 6.

19. Welles Hangen, “Russia Charges Balloon Forays by US & Turks;

Reports Inroads by Spheres Equipped with Cameras and Radio Equipment;

Leaflets Noted Anew: State Department Suggests Moscow May Refer to Air

Force Weather Balloons,” New York Times, 6 February 1956; “US Studying

Protest,” New York Times, 7 February 1956; and Anthony Leviero, “Balloon

Activity Explained By US—Air Force Says Some of 200 Loosed in Scotland

May Have Drifted to Soviet,” New York Times, Special Edition, 9 February

1956.

20. Elie Abel, “Dulles Hints US Will Try to Curb Balloon Flights: Implies

Weather Apparatus Will Be Kept From Soviet Skies as Friendly Move—

Espionage Use Denied,” special to New York Times, 8 February 1956. “Balloon

Flights Stopped by US to Satisfy Soviet,” special to New York Times,

9 February 1956.

21. “Russians Display Balloons of US—Call Flights a Brink-of-War Act—

Insist Spying, Not Weather Study, Is Aim,” special to New York Times,

10 February 1956.

22. “Transcript of the Record of News Conference Held by Dulles,” New

York Times, 8 February 1956.

23. Charles E. Egan, “Soviet is Accused of Balloon Scare—Air Chief Says

Moscow Seeks to Create ‘Incident,’ Espionage Charge Denied,” New York

Times, 12 February 1956.

24. Pedlow and Welzenback, 85. At the same time the Air Force balloon

program was receiving criticism, Richard M. Bissell Jr., special assistant to

the Director of Central Intelligence Allen W. Dulles and the CIA official

designated by Dulles to oversee the U-2 program, had also decided to use

“weather research” as the cover story for the U-2 should its existence ever

be made public. Killian and Land disagreed with Bissell’s proposed cover

story. If a U-2 were ever lost over hostile territory, they proposed that the

US “not try to deny responsibility but should state that the U-2 overflights

were ‘to guard against surprise attack.’ ” Killian and Land’s proposal was to

be studied (but never was) and Bissell’s weather research cover story

remained operative and was implemented vis-à-vis Francis Gary Powers’s

U-2 (discussed later in chapter 5). Ibid., 89, 178–80.

25. Ibid., 86. In reality, some balloons were launched to chart the jet

stream. However, launching weather related balloons at the same time that

intelligence-gathering balloons were launched caused the baby to be thrown

out with the bath water.

GERMINATION

15
26. Hall, “Origins,” 21. Hall provides a complete analysis regarding the

policy factors impacting the creation of intelligence-gathering satellites

during the Eisenhower administration.

27. IGY was “perhaps the most ambitious and at the same time the most

successful cooperative enterprise ever undertaken by nations. The IGY was

a scientific year when experts from 67 nations agreed to observe the earth

over its whole surface, simultaneously, and with precise instruments

designed to the same standards so that the changing phenomena

enveloping the earth could be caught and described in their full global

sense.” See Lloyd V. Berkner, “Foreword,” in J. Tuzo Wilson, IGY The Year of

the New Moons (New York: Alfred A. Knopf, 1961).

Beginning in 1945, the US had already contemplated a military space

program and shortly thereafter studied the feasibility of a US launched

satellite. As noted above, the early consideration of a satellite program got

lost in a thicket not only of interservice rivalries over custody of such a

program but also in skepticism from influential civilian scientists. For a

detailed description of the period from 1945 until 1955, see Bowen and

Schofield references cited in note 1.

28. Vechernaya Moskva, “Evening Moscow,” 15 April 55, cited in Harry

Schwartz, “Russians Already Striving to Set Up Space Satellite,” New York

Times, 30 July 1955, 1; and “Soviet Gives No Date,” New York Times, 30

July 1955.

29. For amplification of this point, see Stephen E. Ambrose, Eisenhower,

vol. 2, The President (New York: Simon and Shuster, 1984).

30. Spires, 41.

31. Some historians assert that the Navy, which eventually was selected

to manage the development of the nonmilitary booster, was aware of this

NSC decision when it submitted its proposal for developing these boosters

to the NSC for approval while the Army and Air Force were not. “USAF

Space Programs,” 12.

32. “USAF Space Programs, 12–13; Hall, “Origins,” 22–23; and Bowen,

57–83.

33. Raymond W. Young, “The Aerial Inspection Plan and Air Sovereignty,” George Washington Law Review 24, no. (5 April 1956): 565–89.

34. Spires (41) correctly concludes that Eisenhower’s civilian IGY

satellite was a “stalking horse” to establish the precedent of “freedom in

space” for eventual military reconnaissance satellites and focused attention

on the former as a diversion from the latter.

35. Ibid.; Hall, “Origins,” 6, 19–22.

36. Ibid., 21.

37. “Open skies” was part of President Eisenhower’s space-for-peace

policy. Open skies contemplated the sharing of information regarding the

exploration of outer space, the setting of limits on sovereignty regarding

outer space, and the inspection of space program facilities. In “Origins of US

Space Policy,” Cargill Hall traces the origin of the open skies doctrine to

Richard Leghorn. Leghorn, while working for Eisenhower’s special assistant

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

16
Harold Stassen, had written a paper and subsequently a booklet explaining

the disarmament proposal made by Eisenhower at the Geneva Conference.

In a 5 August 1955 article in U.S. News & World Report, Leghorn explained

the Eisenhower administration’s rationale for open skies and its implication

for arms reduction. See R. Cargill Hall, “The Eisenhower Administration and

the Cold War: Framing American Astronautics to Serve National Security,”

Prologue, Quarterly of the National Archives 27, no. 1 (Spring 1995): 63–64.

Hereafter Hall, “Cold War.”

38. Russell Baker, “US To Launch Earth Satellite 200–300 Miles Into

Outer Space; World Will Get Scientific Data,” New York Times, 30 July 55, 1.

39. A. Kislov and S. Krylov, “State Sovereignty in Air Space,” International

Affairs (Moscow) (March 1956) cited in Maj Howard J. Neumann, USAF,

“The Legal Status of Outer Space and the Soviet Union,” Space Law,

495–503.

40. Bowen, 64; Hall, “Cold War,” ibid..

41. Bowen, ibid.

42. While the first stage of the Vanguard was fully developed and a

number successfully launched, three stages of the Vanguard were

necessary to launch a satellite into orbit. The second and third stages of the

Vanguard never got beyond dummy status.

43. Marven L. Whipple, “Atlantic Missile Range/Eastern Test Range

Index of Missile Launchings, 1950–1974.”

44. “USAF Space Programs,” 15–16.

45. Bowen, 57–107; Watson, 157–79.

46. Watson, 123–26.

47. Piers Brendon, Ike, His Life and Times (New York: Harper & Row,

1986), 347–49; Marquis William Childs, Eisenhower: Captive Hero; A Critical

Study of the General and the President (New York: Harcourt, Brace, 1958),

258–63.

48. For a more detailed discussion of the Soviet and US capabilities, see

Robert H. Ferrell, American Diplomacy: A History (New York: Norton, 1969),

659–60.

49. In his first meeting with DOD officials after Sputnik was in orbit,

Eisenhower learned from the Army that its Redstone rocket may have been

able to launch a US satellite into orbit two months earlier than Sputnik.

Further, Eisenhower learned that the Army never made such an attempt

because the president had given the mission to the Navy Vanguard

program. On 8 October 1957, Eisenhower asked Deputy Secretary of

Defense Quarles if the assertion of the Army officials was true. Quarles

responded to the effect that the situation was even worse given that the

Army could have accomplished the launch two years earlier, had not DOD

officials and Quarles himself had decided that it was “better to have the

earth satellite proceed separately from military development” so as to

“stress the peaceful character of the satellite program.” See Ambrose, 428.

50. Hall, “Origins,” 22.

51. Spires, 47.

GERMINATION

17
52. Given that the Explorer satellite program successfully launched after

Sputnik and given that on 20 September 1956 a Jupiter-C with a Redstone

rocket as a first stage plus upper stages like those proposed for the Orbiter

had successfully carried an 84-pound payload that could have been

replaced by a satellite, Quarles and the Army officials may have been

correct when they informed Eisenhower that the United States could have

placed an object into orbit before Sputnik. See also Whipple.

53. Hall, “Origins,” 22; Whipple.

54. Hall, “Origins,” 21–22. A valid question, not answered herein, is

whether the Eisenhower administration purposefully allowed the USSR to

be “first-in-space” to lure the USSR into creating by its own actions the

principle of freedom of passage in outer space. Such could explain why

Eisenhower assigned to nonexistant nonmilitary boosters, the task of

sending a satellite into orbit. Perhaps, Eisenhower knowingly and

intentionally proposed an “impossibility.” If anyone appears to have had

such a design in mind, it appears to have been Air Force secretary (later

Deputy Secretary of Defense) Quarles. (See note 36, chapter 2.)

55. The panel was chaired by H. Rowan Gaither, chairman of the board

of directors of the Ford Foundation. For a more complete description of the

panel and its membership and its interworkings, see Watson, 136–41.

56. Ibid., 132–55, 179–87, 293–322.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

18
Chapter 2

Air Force Opposition to International

Conventions on Space

The Air Force had a major impact on the evolution of outer

space law during the 1950s through its close relationship to

the Air Coordinating Committee (ACC). 1

 Before Sputnik I, the

United States had resisted the efforts of Professor Cooper and

others to establish an international convention for outer

space. US opposition was, in large part, due to the strong and

particularly active role that the Air Force played within the

ACC.

Early Air Force Actions Affecting

Outer Space Law

The idea for creating the ACC emerged on 26 December

1944. In a memorandum, Assistant Secretary of War for Air

Robert A. Lovett2

 recommended establishing an interdepartmental committee “to obtain the information and guidance

necessary to make demobilization policies and procedures as

effective as possible in preserving the productive capacity

required for future national defense.”3

 On 27 March 1945,

Acting Secretary of State Joseph C. Grew, Secretary of War

Henry L. Stimson, Secretary of Navy James Forrestal, and

Secretary of Commerce Henry A. Wallace signed the

“Interdepartmental Memorandum Regarding Organizing of Air

Coordinating Committee.”4

 On 19 September 1946, President

Harry S Truman issued Executive Order 9781, Establishment

of the Air Coordination Committee.

Under Truman’s executive order, the Air Coordinating

Committee held the authority to establish US policy regarding

international law affecting air and outer space. The ACC had

authority to take its views directly to the International Civil

Aviation Organization (ICAO) as representing those of the

United States.5

 Given that the ICAO had a Legal Committee,

the ACC created a parallel Legal Subcommittee (later division).

19
The purpose of the subcommittee was to “provide machinery to develop and coordinate

the policies which would guide

the positions to be taken by

the US delegation to the Legal

Committee” of the ICAO.6 The

Air Force, which only recently

had been separated from the

Army, was assigned as the

working group for this effort.

With the Air Force concurring,

the ACC encouraged US compliance with all ICAO recommendations except when,

among other reasons, the implementation would be detrimental to the national interest.7

Until November 1949, the Air

Force and Navy had individual service representation on the

Legal Subcommittee. At that time single military representation became desirable and an assistant general counsel

became the Department of Defense (DOD) member on the

subcommittee.8

 While formal membership of the military

services on the subcommittee ended, they did not cease active

participation in the Legal Subcommittee.

The importance attached to being an active participant of

the ACC is demonstrated by the effort the military services

exerted to maintain an active presence at the ACC. In addition

to its departmental or secretarial level (Department of the Air

Force) representation on the ACC, the Air Force had a staff

liaison officer to the ACC. The Air Force also retained

membership on the ACC Subcommittees on General ICAO

Matters and on the Chicago Convention. In 1952 the Air Force

had regained service membership on the Legal Division.

However, within the Air Force there was divisiveness regarding

its representation at the ACC. Members of the Air Staff had

become restive over not receiving adequate coordination from

the ACC on issues of importance to the Air Staff. Officials

recounted that the Air Force liaison officer had given up

A-4

Robert A. Lovett, Assistant

Secretary of War for Air

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

20
membership on the Legal Division to the general counsel of

the Air Force. One Air Staff official recommended that an Air

Force staff judge advocate be designated as an alternate

member to the Legal Division, noting that “Air Force

membership on the Legal Division should emanate from the

Air Staff.”9

 After some discussion, the Air Staff concluded that

members of the judge advocate general (JAG) corps should not

have to wait for the initiation of coordination. Instead they

should take an active approach and “force” consideration of

their concerns on the Air Force general counsel representative

to the Legal Division.

During the years following the 1944 Chicago Convention,

Professor Cooper continued to work and publish on issues

associated with sovereignty of airspace and outer space. His

works often became the focal points of discussion particularly

within the ACC Legal Division. Cooper sought to establi sh

a direct relationship with the Air Coordinating Committee. He

wrote Delbert W. Rentzel, chairman, Civil Aeronautics Board,

and an ACC member, to inquire whether any ACC attorneys

might desire to work under Cooper at the Institute of Air

and Space Law—opened in September 1952—at McGill

University.10 By 1955 Professor Cooper had concluded that an

international convention similar to the Chicago Convention for

airspace was needed for outer space. He supported the

principle of freedom of passage in and opposed the assertion

of national sovereignty over outer space. Undoubtedly, he

would have included such in any convention he proposed;

however, there is no assurance that the ICAO would have

agreed with Cooper or with his definition as to where outer

space began.

Although Cooper and President Dwight D. Eisenhower

agreed as to the goal to be achieved, it is unclear to what

extent Eisenhower and others in the United States agreed with

the point of delimitation that Cooper proposed. The primary

divergence between Cooper’s proposal and the position of

Eisenhower was over how the principle would be established.

Whereas Cooper proposed that it be by convention;

Eisenhower and the Air Force preferred that the law be

derived by custom and practice. Eisenhower’s goal had

apparently not been shared with or been digested by many

OPPOSITION

21
military officials in the Air Force. Thus, certain Air Force

officers periodically made statements contrary to the freedom

of passage principle.

During the spring of 1956, Cooper met with ACC chairman

Louis S. Rothschild.* Because of that meeting, Ronald C.

Kinsey, secretary of the ACC Legal Division, requested

answers to the following questions:

Should the ACC consider and recommend US positions re

outer atmospheric space in relation to sovereignty

problems raised by use of present and future rockets and

missiles?

Could a legal panel be useful?

When a US position is determined should there be an

international convention?11

Kinsey noted that in addition to Cooper, Oscar Schachter, C.

Wilfred Jenks, and Andrew J. Haley (director and general

counsel of the American Rocket Society)† had proposed the

above questions given that Cooper and others had placed the

general subject of outer space sovereignty on the agenda for

the Tenth Session of the World Assembly of the ICAO to be

held in Caracas, Venezuela, in June 1956. 12 On 7 March 1956

the Legal Division met and considered these questions. With

the Air Force representative strongly concurring, the division

concluded that “the problems posed by Mr. Cooper’s questions

involve extremely important policy as well as legal considerations. Security aspects, and the possible need for a

non-traditional type of approach, would make it imperative

that the matter be kept flexible pending further study by the

United States.”13

The ACC Legal Division further concluded that

consideration of the issues by an international body was

premature and that the United States should consider the

* Rothschild served concurrently as under secretary of commerce.

† Jenks was an associate of Cooper’s at the Institute of International Law, whose

thesis proposed sovereignty as high as three hundred miles above the earth’s surface.

In contrast, Haley appeared to argue that sovereignty extended into areas traversed by

any proposed satellite.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

22
important policy problems within its own government prior to

endorsing such international action. Finally, the division

recommended that the US object to even the study of the

matter by an international body as being premature. These

recommendations did not sway Cooper and he pressed his

position to the point that, in an April press release, the ICAO

announced the need for an international agreement on outer

space sovereignty.14 Air Force officials perceived that Cooper

was “agitating” for an international convention on outer

space.15 As a result, US government officials became concerned that not just discussion of the general issue but that a

convention might be placed on the agenda at the upcoming

ICAO world assembly.16

The Air Force representative at the ACC, Assistant Secretary

for Materiel Dudley C. Sharp,* responded to Cooper’s proposal

by writing ACC Chairman Rothschild. Noting that the proposal

entered an “uncharted area of thinking [and] cut across certain

high-level policies . . . such as the President’s mutual inspection

proposal, the recent Air Force weather balloon problem, earth

satellite projects, and guided missile testing projects,” Sharp

recommended that the ACC postpone consideration of the

proposal. He argued that until higher-level policies had been

developed, the Air Coordinating Committee consider only

“appropriate means whereby such higher-level policy

considerations can be isolated and promptly considered.”

Finally, Sharp proposed that the United States adopt a position

at the ICAO seeking to have the matter postponed as being

premature. Sharp argued that Cooper’s proposition posed a

“number of problems which should properly be disposed of at

the National Security Council or Presidential level” before being

considered by the ACC. Once such national security issues were

resolved, Sharp indicated he felt comfortable with the ACC

dealing with the issue and allowing legal experts to “attack the

problem of drafting a United States position on any proposed

international convention.”17 At the same time, Secretary Sharp

asked Air Force chief of staff Gen Nathan F. Twining for A ir

Staff “views on the military implications of an international con -

* Sharp later became secretary of the Air Force, serving from 11 December 1959 to

20 January 1961.

OPPOSITION

23
vention regarding the use of

outer air space.” Sharp encouraged the other services to

also review the issue.18

In letters dated 9 and 10 April

1956 to Chairman Rothschild,

Cooper encouraged the ACC

to reject the position of its

own Legal Division.19 Given

Eisenhower’s July 1955 statement that the United States

would include a satellite as

part of its IGY effort, Cooper

argued that the US had

precipitated the need to resolve

the issue of sovereignty by

announcing its intention to

launch a satellite into outer

space. Cooper felt that if the

US was prepared to launch

such a satellite, it ought also

to be prepared to state its position on the sovereignty issue. In

a second letter, Cooper reiterated his earlier position. He

reasoned that the United States, by announcing its intention

to launch a satellite, had accepted the proposition that it did

not retain sovereignty of the outer space above its territory

and thereby waived any legitimate grounds on which to object

to foreign satellites passing over its territory. Cooper’s

argument was clearly in accord with President Eisenhower’s

position of espousing a freedom of passage in outer space, but

the president’s position and its implications had apparently

not yet been communicated outside a small circle of advisors.

Given Professor Cooper’s efforts, ACC Chairman Rothschild

quickly responded to Secretary Sharp’s request. Rothschild

reiterated the positions taken by Kinsey and the Legal Division

and welcomed Air Force and other DOD input when the

studies Sharp had initiated were completed. 20

Cooper was not about to let the issue die based on the

ACC’s actions. In an address to the annual convention of the

American Society of International Law (ASIL), he discussed the

A-5

Dudley C. Sharp. Sharp served in

various high-level offices in the Air

Force, eventually becoming

secretary of the Air Force in 1959.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

24
issues associated with outer space sovereignty and urged that

outer space law issues be resolved through an international

convention. Also at the ASIL convention, Professor Cooper

proposed, among other things, a convention providing that all

space above “contiguous space,” that is, three hundred miles

above the earth’s surface, be free for the passage of all devices.

Perhaps because of its premature nature, but for reasons

unknown, Cooper’s proposal did not pass.

In the meantime, by memorandum dated 9 May 1956, Col

Paul W. Norton, director of civil law, Office of the Judge Advocate

General, responded to the request by Sharp and General

Twining for an Air Force position. Colonel Norton informed Maj

Gen Richard C. Lindsay, acting assistant deputy chief of staff for

operations, that any international convention was “premature

and contrary to the best interests of the Air Force.” Noting that

the United States had “assumed the lead in the research and

development of long-range guided missiles, rockets, and satellite

programs,” Norton advised that “any codification of formal,

intergovernmental rules at this time would operate to fetter the

unbounded use of outer space for military research and

development.” He based this conclusion on the fact that current

US programs were military sponsored and that past

international conventions regarding airspace allowed military

overflights only with special authorization of the subjacent

nation. Norton concluded that a like provision would be

included in any convention dealing with outer space.

Colonel Norton argued that, given that the United States

was more advanced than any other nation, the effect of such a

convention would have a more profound effect on the US than

on anyone else, including the USSR. He cited case law stating

that any nation can take any reasonable and necessary

measures to protect its national security even outside its

territory and airspace. Based on these legal precedents, he

concluded that should foreign use of outer space jeopardize its

security then the United States, for its self-defense, could

undertake reasonable and necessary unilateral restrictions on

the use of space by other nations. Norton argued that other

nations would accept such moves and that the US should be

prepared to accept similar restrictions if imposed by other

nations. He contended that so long as other nations did not

OPPOSITION

25
raise objection to US programs

and no other nation’s program

presented a threat to the

United States, any international convention would

hamper Air Force missions and

research. Finally, he advised:

In this formative stage, we

believe the practice of nations

will create a more realistic

precedent for future conduct in

outer space than formulation at

this time of international rules

which could not possibly be

grounded in actual practices

and experience, but only on the

abstract theories of each

country’s statesmen and jurists.

The value of actual practice is

especially important so long as

the United States has the

capability of leading the way in

establishing the precedent.21

Colonel Norton’s early pronouncement of an Air Force

position opposing Cooper’s

efforts had been analyzed and

written by Maj Hamilton

DeSaussure.22 Ironically, Major

DeSaussure had been Cooper’s

student, having been a member of the first class to graduate

from McGill University’s Institute of Air and Space Law.

At the June 1956 ICAO meeting, as a result of the

recommendations of the Air Force and others, the US “took the

position that international discussion was at that time

premature.” Generally, the US sentiments were shared by

other nations and Cooper’s proposal was tabled. 23 However,

the [Legal] Commission [of the ICAO] noted the growing interest among

jurists in the problems concerning “Outer space.” [The Commission]

considers that these problems fall essentially within the province of the

functions of the Organization and that, at a suitable time, the y might be

included in the general work program of the Legal Committee. 24

A-6

Maj Hamilton DeSaussure and Maj

Gen Albert M. Kuhfeld. DeSaussure

prepared key position papers for the

Air Force JAG office in support of the

Air Force’s position in the early

debates about outer space. General

Kuhfeld later became The Judge

Advocate General of the Air Force

and was a leading advocate of the Air

Force taking a proactive posture in

attempting to shape international law

as it related to outer space.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

26
In its 1956 Annual Report to the President, the ACC related

that its Legal Division had formulated the US position for

discussions regarding the legal problems of outer space in

preparation for the ICAO meeting in Caracas. The ACC

reported: “Among other things in its position, the United

States delegation strongly opposed inclusion of the topic

‘Legal Problems beyond Air Space’ in the work program of

the ICAO Legal Committee on the ground that there is

insufficient knowledge at the present time of the practical

problems for which a solution may be necessa ry.”25

Air Force Actions before and after Sputnik

In January 1957, during his State of the Union message,

President Eisenhower expressed a willingness to accept an

international agreement to control missile and satellite

development for use in outer space. He linked this position

to his space-for-peace and disarmament proposals. 26 Later

that month, during a disarmament debate, Henry Cabot

Lodge, US ambassador to the United Nations (UN),

reconfirmed such US willingness. Lodge noted that several

nations were proceeding to launch objects into outer space

and that some form of international control needed to be

established.27

Shortly after Eisenhower’s State of the Union address, in an

air intelligence report entitled “The Legal Status of Outer

Space and the Soviet Union” (approved by Col Clifford R.

Opper, Air Force director of intelligence), Maj Howard J.

Neumann discussed international law and the Soviet

interpretation of outer space.28 Major Neumann noted that

while the Soviets claimed unlimited sovereignty to all space

(air and outer) over its territory, the Chicago Convention* was

premised on the 1919 Paris Convention’s† use of the French

words meaning atmospheric space. Accordingly, Major

Neumann argued that outer space was governed by no

* Convention on International Civil Aviation.

† The 1919 Paris Convention (International Convention for Air Navigation) ad -

dressed international regulation of civilian aerial navigation. It established the Inte rnational Commission for Aerial Navigation, which was superseded in 1947 by the

ICAO.

OPPOSITION

27
existing law. He pointed out that the USSR, which was not a

party to either convention, did not limit its sovereignty to the

stratosphere.

Major Neumann concluded that “an international convention seems to be necessary at an early stage of mankind’s

penetration and exploration of outer space, in order to prevent

undesirable interferences which end in loss of human lives

and valuable material.”29 Contrary to the Air Force position at

the ACC, Major Neumann concluded that Cooper’s proposal

had merit and advised that, since the USSR had projects

planned for outer space, it might be possible to conclude an

international agreement with the USSR establishing the legal

status of outer space. If the issue were not resolved, Major

Neumann predicted that it would serve as a “constant source

of international complications.”30

The sovereignty issue was raised again during the summer

of 1957. Col T. J. Dayharsh of the Permanent Joint Board of

Defense (Canada and the United States), questioned Howard

E. Hensleigh, assistant DOD general counsel for international

affairs, regarding the legality of proposed flights of US

intercontinental ballistic missiles through the “upper air

space” over Canada. Hensleigh in turn requested assistance

on Colonel Dayharsh’s request from the DOD military

departments. In July, responding on behalf of the Air Force,

Charles L. Kent, assistant general counsel, provided Hensleigh

with substantive comments including references to the 1956

ICAO assembly and the success of the US in stripping outer

space issues from the ICAO agenda. Hensleigh incorporated

several of Kent’s suggestions including the ICAO reference in a

memorandum to Dayharsh indicating that there was no

internationally accepted line of demarcation between air and

outer space. That fall Dayharsh thanked Hensleigh, noting

that his “excellent background material and advice on a

desirable United States position was made available to briefing

officers and used by them in briefing selected Canadians.”

Colonel Dayharsh noted that the “Canadian viewpoint

coincides with that approach to the question recommended

[by Hensleigh]” and that all issues had been satisfactorily

resolved.31

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

28
The Soviets launched Sputnik I on 4 October 1957 and

Sputnik II in November. During the several months before the

launchings, “there was furious activity on the Air Staff on

space matters.”32 The Air Staff was preparing for an Air Force

space launch of a “civilian” satellite at Cape Canaveral.*

During this time, the legal ramifications of the launch were

being studied, particularly the issue of whether an orbit over

another country would violate its sovereignty. The JAG’s

International Law Division advised the Air Staff to the effect

that there was no answer to the sovereignty issue “because no

spacecraft had ever been successfully launched and no

international agreement existed on the subject.” 33 Neither

practice nor treaty was yet in effect.

Having learned of the Soviet’s successful launch and orbit of

Sputnik, several Air Staff members rushed to the office of

General LeMay, the vice chief of staff. Having briefed him on

the Soviet launch, they questioned him as to whether the US

should protest given that by Sputnik’s overflight of the United

States the Soviets had violated US sovereignty. He responded,

“We were going to orbit their country weren’t we?” 34 His reply

ended any Air Force-initiated protest of the Soviet launch.†

Deputy Secretary of Defense Donald Quarles observed, “the

Russians have done us a good turn, unintentionally, in

establishing the concept of freedom of international space . . .

Eisenhower . . . looked ahead and asked about a reconnaissance vehicle [satellite].”35 During a news conference on

9 October 1957, Eisenhower hinted at his stalking-horse

agenda when questioned regarding Sputnik. He stated, “From

what they say they have put one small ball in the air;” and, he

* As noted earlier, by the mid-1940s, there was already significant interservice

rivalry seeking to capture the space program. Indicative that this rivalry continued

well into the 1950s, Air Force vice chief of staff General LeMay would state on 17

March 1959 that “while recognizing Army and Navy interest in aerospace projects, we

would seek to limit their participation to a coordinating role.”

† General LeMay’s position was clearly in accord with Eisenhower’s thinking.

Whether General LeMay was advised as to the stalking-horse strategy or separately

came to the same conclusion is unknown. If he had been advised, General LeMay

apparently had not shared that insight with others in the Air Force such as Generals

Donald L. Putt and Richard M. Montgomery, both of whom, as discussed below, took

much different positions.

OPPOSITION

29
added, “at this moment you [don’t] have to fear the intelligence

aspects of this.”36

By tying the US space program to his freedom of space

policy, Eisenhower had hoped to impress upon the world the

peaceful intent of the US.* However, whatever propaganda

advantage the United States had gained by such peaceful

remonstrations was overshadowed when the USSR was “first

in space.” Interestingly, the launch of Sputnik, while sharpening the focus of the heretofore essentially academic discussion

of sovereignty in outer space, did not result in any immediate

international convention. Additionally, the Soviets reversed

their position of asserting sovereignty over outer space above

their territory. When confronted with their apparent reversal,

the Soviets adopted temporarily the rather specious position

(clearly contrary to the laws of physics and astronautics) that

it had not violated any other nation’s sovereignty since

Sputnik had not flown over any nation’s territory but instead

the territories had passed under Sputnik. Eisenhower’s hidden

stalking-horse agenda of obtaining free passage in space for

intelligence gathering devices had been achieved. The US was

not alone in failing to object to Sputnik’s overflight of its

territory. No other country objected to the overflight of their

territory either, thus establishing the first custom in outer

space law, that is, the free flight of objects in outer space. The

USSR, in its exuberance over its successful satellite launches,

made no distinction between scientific and intelligencegathering devices (nor did any other country). When countries

failed to object to subsequent satellite overflights, the custom

became firmly established.37

Because of Sputnik I, ICAO President Walter Binaghi wrote

to Nelson B. David, the US representative on the ICAO

Council, inquiring whether it was time to finally consider the

issue of outer space sovereignty. He also inquired as to the

ICAO’s appropriateness as the vehicle to do so. Binaghi’s inquiry

was referred to the ACC by David. Robert Kinsey, secretary of

the ACC Legal Division, informed the members of the division of

* Again it must be remembered that the focus of the US missile program was not

focused on launching a satellite but rather focused on delivery of a warhead on target

anywhere on earth.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

30
Binaghi’s letter and set the matter for consideration at the

next meeting. On 8 November 1957, the ACC’s Legal Division,

with the Air Force concurring, approved a position in response

to Binaghi’s inquiry. Before forwarding this response, the

division reviewed the earlier US opposition to the inclusion of

the sovereignty issue in the ICAO’s work program.

The Air Force, represented by Daggett Howard, associate

general counsel for international civil aviation affairs, and the

Army argued that the main US interest in space was military.

Howard, who later would become the first general counsel for

the Federal Aviation Administration, indicated that it was

problematic to have the ICAO undertake discussion of the

sovereignty issue when the USSR—the only state to have

launched a satellite—was not a member of the body. 38 The

division approved a letter to David stating:

The United States believes that considerably more technical

development and experience are needed before any international

action on the problem you have raised should be undertaken. Rules

and regulations or theories relating to international principles

applicable to outer space evolved in this early stage could do little to

further the work. They might put unnecessary and undesirable

obstacles in its path.39

The division noted that, given that the predominant interest in

outer space was not civil aviation, the ICAO was not the

appropriate vehicle to undertake resolution of the sovereignty

issue. The Legal Division stated that “it is too early to predict

what methods for dealing with this problem may prove to be

desirable.” Binaghi later advised David that he had sent the

same letter to the United Kingdom (which never responded),

France (which desired ICAO discussion), and Canada (which

supported the US position but felt the United Nations was the

appropriate vehicle). While noting that other countries desired

an ICAO discussion of the sovereignty issue, Binaghi indicated

an understanding of the US position and agreed to delay an y

further discussion of the subject until the ICAO’s next session.40

Subsequently, in a letter to Henry T. Snowden, chief,

Aviation Division, Department of State, David agreed that

there was little practicality in the ICAO studying the space

problems at this time, but pointed out that the United States

could not “count on keeping ICAO’s head in the sand on this

OPPOSITION

31
issue. A more realistic attitude would be to prepare for ICAO

consideration of the subject and to develop a positive

approach as to how we want to have this done.” 41 Later the

ICAO discussed the subject of outer space and agreed that it

had authority to conduct studies of the subject matter.

However, the ICAO took no formal action.

In January 1958 the ACC Legal Division met with David to

consider past and future ICAO discussions regarding outer

space. David enumerated the reasons why he expected the

ICAO to reverse direction and eventually take up the issue.

During the meeting, the Air Force was the most vociferous

opponent of any shift in the US position. Howard again

forcefully represented the Air Force point of view that efforts

to develop outer space law should not be adopted before any

actual operations that such laws would be intended to

A-7

Daggett Howard and Secretary of the Air Force James Douglas (1958). Howard

represented the Air Force at International Civil Aviation Organization meetings

to discuss sovereignty issues in outer space. He became the general counsel

of the Federal Aviation Administration.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

32
govern had begun. He reiterated that the main issues

regarding outer space involved “national defense and military

type questions.”

Howard asserted that the ICAO was an inappropriate

vehicle for discussing the issue since the Soviets were not

members of the ICAO. He argued that it would be dangerous

for the free world to adopt restrictions on its own space

activities without the Eastern bloc’s participation. Since the

Soviet bloc had yet to agree on issues impacting airspace,

Howard maintained that there was no need to do for outer

space what had yet to be done for airspace. Nonetheless, he

argued that the ICAO could not held at bay indefinitely. He

argued that from a negotiating standpoint, it was stronger to

take a firm negative position rather than open the door

slightly to discussions, which when once begun, likely could

not be contained. David indicated agreement with the Air

Force position but noted that the arguments given by the Air

Force had not persuaded other ICAO council membe rs.

Finally, Howard argued that President Eisenhower’s

pronouncement that the UN and not the ICAO should

consider the issues surrounding the use of outer space

could serve to delay ICAO action on the issue. David agreed

that if the issue could be more firmly planted at the UN, the

ICAO could be easily dissuaded, and he acknowledged that

he understood that the ACC Legal Division essentially sided

with the Air Force position. The Legal Division then directed

that the State Department, with assistance from the Air

Force, prepare a new set of instructions. The instructions

would be used by embassies in ICAO Council countries to

support the US position of avoiding ICAO discussion of

outer space law.42

Even though the Air Force had succeeded in keeping outer

space law questions off the ICAO agenda and in general had

effectively stalled any resolution of outer space law issues,

by mid-1958 “the magnitude and variety of these [space law ]

studies moved several well-known American jurists to

remark that 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.” 43 State Department officials

OPPOSITION

33
realized that some guidance was needed for its delegation at

the UN.44

At this time, State Department legal adviser Loftus Becker

proposed a presidential proclamation recognizing that

reconnaissance satellites were in accord with international law

so long as they did not interfere with terrestrial activity.

Hancock expressed his concerns about this wording directly to

Becker. Hancock indicated no problem with “snoopniks,” but

he did question whether the breadth of the proclamation

might preclude US objections to future satellites interfering

with communication transmissions or weather operations.

Hancock asked that Becker confine the proposed proclamation to projects that were part of the IGY. Hancock reasoned

that, by following his advice, the US could still contribute to

establishing the thrust of the proclamation as a principle of

international law without being bound by a premature, unqualified proposition whose consequences were unforeseeable.

Hancock did not oppose banning satellites designed for

“weapons purposes” as long as the language clearly prohibited

any satellites that interfered with any terrestrial activity. 45

Hancock was not alone in the Air Force in expressing

reservations about Becker’s proposed proclamation. However,

it is not clear that the concerns of the Air Doctrine Branch,

which were raised with the director of plans, were made

known outside the Air Force.46 In response to Becker’s 3

December draft memorandum for the secretary of state, the

DOD assistant general counsel for international affairs,

Monroe Leigh, wrote to Becker. Leigh stated that “the

proposed proclamation is not as guarded as it should be in

order to take care of the interests of various Department of

Defense programs.” Leigh felt that language excluding objects

or vehicles “designed or equipped for weapons purposes”

should be revised to prohibit vehicles “intended to inflict

injury or damage.” Since the US satellite programs were in

large part funded by the military, Leigh noted that without his

revision Becker’s language would create “an almost

irrebuttable presumption” that the projects were being carried

out for “weapons purposes.” Leigh opposed using the law of

the high seas as an analogy for developing the law of outer

space. Becker included Hancock’s IGY proposal and removed

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

34
the “designed for weapons purposes” language from the draft

proclamation.47 Ironically, just before the US issued the

proclamation, East Germany protested the orbiting of US

military reconnaissance satellites that were not IGY affiliated.

The proclamation was never issued.*

The Air Force position and now the US position as

established by the ACC and its Legal Division—that ICAO

consideration of outer space was premature—remained constant

throughout 1958. Eventually, the forum for discussion of outer

space issues shifted from the ICAO to the UN. As a result, and in

large part due to strong Air Force urging, the United States had

successfully deflected ICAO discussion of the sovereignty issue.

As early as 1959, the UN first considered and identified the

question of the definition of outer space as a legal problem. In

1959, in accord with US policy, the United Nations Committee

on the Peaceful Uses of Outer Space (COPUOS) concluded that a

determination of precise limits for airspace and outer space was

not a problem requiring priority attention. As recently as 1985,

the UN (with the ICAO monitoring the progress) again

unsuccessfully attempted to define outer space. The issue still

remains on the agenda of the Legal Subcommittee of the UN

Committee on Peaceful Uses of Outer Space. To date the UN has

not defined outer space nor resolved the concomitant

sovereignty issue. Given that the delimitation issue is

inextricably tied to the sovereignty issue, as long as the Bogota

Declaration continues under discussion, the delimitation issue

will remain a hot topic.

Project RAND:

Supporting the Air Force Position

Sputniks I and II caused a change in the “discussion of the

character of space law and affected the quantity but not the

quality of legal writing”; the emphasis of space law discussions

“shifted toward a more realistic approach.” 48 Apparently Leon

* By late 1958, the position advocated by the US Air Force of not encouraging the

passage of international conventions was more in accord with the position advocated

by the USSR than with the US Department of State presumably because both the Air

Force and the USSR were more interested in allowing technology to develop.

OPPOSITION

35
Lipson, when making this statement, was not aware of the

ongoing discussions being held at the ACC and within the

National Security Council (NSC). Contrary to Lipson’s October

1959 assertion, US policy making at the ACC and NSC with

respect to outer space law was indeed realistic during the

1950s.

Due in part to Sputnik and the growing pressure on the

ICAO to address the issue of outer space law, the Air Force

recognized that it needed an in-depth analysis of these issues.

The Air Force understood the need for this study even though

it had been instrumental in successfully delaying the ICAO’s

consideration of a convention on outer space law. In 1957, at

the request of the Air Staff, Project RAND published

preliminary findings and recommendations in an interim

report entitled “Some Implications for US National Security of

Activities in Outer Space.” The premise of the RAND study was

that the US “would soon have to take a position publicly on

questions of sovereignty and associated legal rights and

privileges in regard to the use of outer space by nations.” The

conclusion and recommendations of Project RAND were

Considerations of international law as such ought not now to occupy a

major place in the determination of US policies affecting activities by

nations in outer space. Existing legal rules do not necessarily require

or forbid any specific activities of the type that we are likely to

contemplate in outer space; the law of outer space has still to be

evolved; the United States should determine what space policies and

activities are desirable on other grounds before asking whether they

violate old legal rules or require new ones.

Political and psychological measures should be prepared for the

contingency of continued Soviet successes in space.

Efforts should be made to offset Russia’s claims that it stands only for

peace while the US wants war.

The disclosure of news about space activities by the US can be

planned to restore confidence abroad in US statements and to further

US policy objectives.

To achieve the most favorable political and psychological effects from

US activities in space and effectively to frustrate Soviet objectives

requires planning and coordination at the highest levels of

government.49

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

36
The RAND report further noted that the initial questions

posed concerned “space law,” “sovereignty,” and associated

questions of international law. RAND’s conclusions were similar

to what the Air Force had been articulating at the ACC, namely,

that “the legal approach to developing national policies on space

matters is not the only, or even the principal, relevant

approach.” RAND observed that the most important conclusion

was that “considerations of international law as such ought not

now to occupy a major place in the determination of US policies

affecting activities by nations in outer space.” The study

suggested that the United States determine what space activities

or policies were desired on other grounds before asking if the

activities or policies violated old legal rules or required new

ones.50 Finally, the Project RAND report asserted that at the time

Sputnik was launched, activities in outer space were not covered

by existing international law.51

Subsequent to the RAND report, Assistant Secretary of

Defense for International Security Affairs Mansfield D.

Sprague* circulated an outline entitled “Some Elements

Requiring Consideration in Formulating a National Policy on

Outer Space.” Its basic thrust was consistent with the RAND

study, stating that “there is a real danger that we may harm

ourselves by too early commitments, before the full implications of space potentials are known. Our policy and national

interest should be permitted to develop first: the law, and

commitments should follow, and be consonant with the

former.”52 However, the outline did note that with respect to

the principle of freedom of space that “we must evolve a

workable theory of international law” on this probl em.53

Whether space law should be codified remained an issue. In

May 1958, during testimony before the Senate Special

Committee on Space and Astronautics, Department of State

legal adviser Loftus Becker, echoing what the Air Force had

first advised, reiterated US policy.

It has been felt that the soundest way to progress in the extremely

complex field of the law is by means of specific decisions on specific

questions presented by specific fact situations . . . Moreover, there are

* Sprague had been an active member of the panel that was responsible for the

Gaither Report.

OPPOSITION

37
very great risks in attempting to transmute a body of law based upon

one determined set of facts into a body of law with respect to which

the basic facts have not been determined. 54

Accordingly, Becker indicated the State Department was

“inclined to view with great reserve” codification of outer space

law.55

In March 1958, Air Force chief of staff Gen Thomas D.

White publicly opposed the setting of any boundaries between

air and outer space. General White articulated an air-space

continuum (aerospace) doctrine that “it should be recognized

that there is no division, per se, between the two. For all

practical purposes air and space merge, forming a continuous

and indivisible field of operations.” 56 Also in the spring of

1958, the assistant deputy chief of staff for plans and

programs directed that the Air Doctrine Branch complete a

second sovereignty study for Air Force “eyes only,” regarding

the feasibility of international law for space and its effects on

military space programs. The Air Doctrine Branch, Air Policy

Division, Directorate of Plans, DCS for Plans and Programs,

circulated the study to the Air Staff on 22 August 1958. The

study—prepared with the advice and assistance of all

interested headquarters agencies, the Air University (AU), and

RAND—was circulated among Headquarters USAF offices in

October.57 Given that an earlier published AU study was

“divergent” from the opinions of the Air Staff, the Air Doctrine

Branch recommended any further studies incorporating the

opinions of both be held in abeyance pending completion of

the RAND study, which had earlier been circulated in

preliminary form.* The Air Doctrine Branch study group

members recommended that their conclusions form the basis

for Air Force policy on the question of sovereignty over outer

space.58

In February 1959 General White reiterated the continuum doctrine in testimony before the House Committee

on Science and Astronautics when he stated, “Since there is

no dividing line, no natural barrier separating these two

areas (air and space), there can be no operational boundary

between them. Thus air and space comprise a single con-

* For a detailed extract of the Air Doctrine Branch study conclusions, see appe ndix B.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

38
tinuous operational field in

which the Air Force must continue to function. The area is

aerospace.”59 Because he used

the term aerospace, General

White received some sharp

criticism from members of the

other services, in the press,

and from Congress. He never

retracted the term and the

criticism eventually subsided.

Clearly, the Air Force had dug

in its heels on defining where

outer space began. While

recognizing that international

conventions regarding outer

space law might be forthcoming, the Air Force was not

about to encourage their

adoption.

The struggle between those desiring to see the development of outer space law based on custom and precedent and

those seeking resolution through limited international

agreements continued well into the 1960s. The propone nts

of the latter, generally jurists and high-level government

officials, perceived that eventually “a formal legal code

embracing large segments of space activity” could and should

be adopted immediately. The proponents of the former

approach continued to argue that more scientific facts were

needed before decisions could be made and national security

might be compromised as a result of such ignorance. These

proponents were generally midlevel US government officials. 60

Notes

1. According to the Military Air Transport Service (MATS) history for

January–June 1955, the Air Coordinating Committee (ACC) and the Air

Force had a close working relationship. The ACC was eventually composed

of representatives of the Departments of State, Air Force, Post Office, Navy,

and Commerce as well as the Civil Aeronautics Board. It was tasked with

assuring that the United States achieve “lasting preeminence in the skies.”

A-8

Gen Thomas D. White. As chief of

staff of the Air Force he coined the

term aerospace doctrine.

OPPOSITION

39
Specifically, the ACC was used to enable various “segments of the federal

executive branch to develop and present an integrated policy on the

economic, technical, legal, and diplomatic problems relative to the

production and operation of civil and military aircraft in foreign and

domestic flight.” Walter H. Wager described the ACC as “holding the key to

the United States air policy” and as being an effective instrument for the

formulation of policy because “it works.” Wager, “The Air Coordinating

Committee,” Air University Quarterly Review 2, no. 4 (Spring 1949).

2. Lovett, who would eventually become secretary of defense, had served

since 1942 on the War Aviation Committee, the forerunner for the ACC,

along with the assistant secretaries for air of the Navy and Commerce

Departments and the chairman of the Civil Aeronautics Board. See Wager,

18–19.

3. Kenneth C. Royall, under secretary of war, to assistant secretary of

war for air, memorandum, subject: Air Coordinating Committee, 19 June

1946; and Wager, 21.

4. Wager, 20.

5. MATS History, vol. 1, January–June 1955, 4.

6. ACC Document 51/29.13, 3 February 1948.

7. Lt Col A. S. Raudabaugh to Col W. Bryte, memorandum, subject: US

Matters—General Policy for US Compliance with and Implementation of the

Convention and ICAO Decisions Thereunder, Reaffirmation of ACC 52/13,

SPM 13 Amended, 4 February 1948.

8. Lt Col Thomas C. Hollick, assistant executive, DCS/Plans and

Operations, to Orders Section, Air Adjutant General, memorandum, subject:

Reorganization of the Air Coordinating Committee, 1 December 1949.

9. Helen Cross (AFOPD-PY-CA) to Colonels Bridges and Cage,

memorandum, subject: Air Staff Representation on the Legal Division, ACC,

7 May 1952.

10. John C. Cooper to Delbert W. Rentzel, chairman, Civil Aeronautics

Board, 16 April 1952.

11. Ronald C. Kinsey, secretary, Legal Division, memorandum, subject:

Treatment of the Problem of Sovereignty and Associated Legal Privileges and

Rights in Regard to the Use Of Outer Space by Nations, 7 March 1956

(hereafter Kinsey memo).

12. Ibid.

13. ACC Legal Division, to ACC executive secretary, draft memorandum,

subject: Legal—Treatment of the Problem of Sovereignty and Associated

Legal Privileges and Rights in Regard to the Use of “Outer Space” by

Nations, 12 March 1956, 1. This memorandum summarizes Legal Division

agreements reached at its 7 March 1956 meeting. Kinsey memo cited at

note 11 is attached to the ACC memorandum dated 12 March 1956.

14. News Release, L. C. Boussard, public information officer,

International Civil Aviation Organization, Montreal, Canada, 4 April 1956.

15. Maj Hamilton DeSaussure, memorandum for file, AFCJA, 7 May

1956.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

40
16. Joseph M. Goldsen and Leon S. Lipson, “Some Implications for US

National Security of Activities in Outer Space—An Interim Report,” RM 2004

(Santa Monica, Calif.: RAND, 28 October 1957), 1.

17. Dudley C. Sharp, assistant secretary of the Air Force, to Louis S.

Rothschild, ACC chairman, memorandum, subject: Growing Interest in

Possible International Convention on Use of “Outer Space” by Nations, 4

April 1956.

18. Ibid., 2.

19. John C. Cooper to Louis S. Rothschild, 9 April and 10 April 1956.

20. Rothschild, chairman, Air Coordinating Committee, to Sharp, Air

Force member, ACC, 12 April 1956.

21. Col Paul W. Norton to Maj Gen Richard C. Lindsay, memorandum,

subject: Growing Interest in Possible International Convention on Use of

“Outer Space” by Nations, 9 May 1956.

22. Author’s notes no oral interviews with Will H. Carroll and Maj

Hamilton DeSaussure.

23. Goldsen and Lipson, 2.

24. Report and Minutes of the Legal Commission Document, 1956

International Civil Aviation Organization 7712, A10-LE/5, 6.

25. Annual Report to the President, Air Coordinating Committee, 1956.

26. “Text of President Eisenhower’s Annual Message to Congress on the

State of the Union,” New York Times, 11 January 1957.

27. Maj Howard J. Neumann, “Outer Space and the Soviet Union,” Air

Intelligence Report, 18 February 1957, 2.

28. Ibid., 7.

29. Ibid., 10.

30. Ibid., 11.

31. Col T. J. Dayharsh to Howard E. Hensleigh, DOD assistant general

counsel (international affairs), memorandum, subject: Canadian

Understanding of United States Inter-Continental Ballistic Missile Plans as

They Concern Canada, 12 September 1957.

32. Carroll, 2.

33. Ibid., 2–3.

34. Ibid., 3.

35. R. Cargill Hall, “Origins of US Space Policy: Eisenhower, Open Skies,

and Freedom of Space,” Colloquy (December 1993), 23. Walter A.

McDougall, The Heavens and the Earth: A Political History of the Space Age

(New York: Basic Books, 1985), 134.

36. Public Papers of the President of the United States: Dwight David

Eisenhower, 1957 (Washington, D.C.: Government Printing Office, 1958

[210]), 724. Whether the Eisenhower administration had simply been willing

to accept the Soviets being “first in space” or purposely calculated by

playing Br’er Rabbit to the Soviets Br’er Bear, thereby, suckering the

Soviets into going first in space so as to set the precedent Eisenhower

wanted to achieve, that is, the freedom of passage in outer space, is

unknown but doubtful. However, if anyone had created the scenario for the

OPPOSITION

41
Soviets to go first in space, it appears to have been DOD civilian officials

and Quarles in particular. Quarles recommended the stalking-horse

strategy. Quarles issued the gag order on the discussion of military space

operations. Quarles directed that no military satellite would precede a US

civilian satellite both before and even after Sputnik. Finally, Quarles

explained to Eisenhower, shortly after Sputnik’s success, how the Soviets

had “done us a good turn, unintentionally, by establishing the concept of

freedom of international space.” See Stephen E. Ambrose, Eisenhower, vol.

2, The President (New York: Simon and Shuster, 1984, 248). If Eisenhower

had consciously been setting the Soviets up to go first in space, it is

unlikely that Quarles would have felt compelled to explain to Eisenhower

the advantage to the US from having the Soviets go first.

37. Maj John Morrison-Orton, USAF, “Juridical Control of Weapons in

Outer Space,” (master’s thesis, National Law Center, George Washington

University, 30 September 1984), 32.

38. Minutes, 74th Meeting, Legal Division, ACC, 8 November 1957,

Agenda Item 1 - ICAO Matters—Treatment of the Problem of Sovereignty

and Associated Legal Privileges and Rights in Regard to Use of “Outer

Space” by Nations (LD Memo 18-57), 2–4.

39. William E. Neumeyer, ACC executive secretary, to Nelson David, US

representative to ICAO, teletype, 13 November 1957. Attached to Kinsey to

ACC Legal Division members, memorandum (LD 18A-57), subject: ICAO

Matters—Treatment of the Problem of Sovereignty and Associated Legal

Privileges and Rights in Regard to the Use of “Outer Space” by Nations, 14

November 1957.

40. Nelson David, US representative to ICAO, memorandum of telephone

conversation with Alberta Colclaser, State Department representative to

ACC Legal Division, and Joan Gravatte, 22 November 1957. Attached to

Kinsey to Legal Division members, memorandum (LD 186-57), subject:

ICAO Matters—Treatment of the Problem of Sovereignty and Associated

Legal Privileges and Rights in Regard to the Use of “Outer Space” by

Nations, 26 November 1957.

41. Nelson David to Henry T. Snowden, chief, Aviation Division,

Department of State, 23 November 1957.

42. Approved minutes, 75th Meeting of ACC Legal Division, Department

of State, 13 January 1958, Agenda Item 1, ICAO Matters—Treatment of the

Problem of Sovereignty and Associated Legal Privileges and Rights in Regard

to the Use of “Outer Space” by Nations.

43. M. S. McDougal and L. Lipson, “Perspectives for a Law of Space,”

American Journal of International Law 52, no. 3 (July 1958): 407, cited in R.

Cargill Hall, “The International Legal Problems in Space Exploration, An

Analytical Review” (master’s thesis, California State University at San Jose,

June 1966), 3.

44. Draft recommendation to [Joseph] Sisco, Department of State,

subject: United Nations Consideration of Outer Space Control Proposals, 20

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

42
November 1958, attached to Loftus Becker to William W. Hancock,

transmittal memorandum, 28 November 1958.

45. Hancock to Becker, memorandum, subject: United States Declaration

on Non-Interfering Space Objects, 1 December 1958.

46. History, Directorate of Plans, Deputy Chief of Staff, Plans and

Programs, HQ USAF, vol. 17, 1 July–31 December 1958, 168. (Hereafter

History, DCS/Plans and Programs.)

47. Monroe Leigh to Becker, memorandum, subject: Legal Status of

Non-Interfering Objects, 11 December 1958.

48. Leon Lipson, discussion leader, Chapter III, “Some Problems of the

Near Future and Possible Approaches,” 5 May 1960, 79, quoted in Joseph

M. Goldsen, “International Political Implications of Activities in Outer Space:

A Report of a Conference, October 22–23, 1959,” R-0362-RC, Santa Monica,

Calif., RAND.

49. Goldsen and Lipson, vi.

50. Ibid., vi, 5–6.

51. Ibid., 31–37.

52. Outline, “Some Elements Requiring Consideration in Formulating a

National Policy on Outer Space,” 6, attachment to Mansfield D. Sprague,

assistant secretary of defense, to secretary of the Air Force et al.,

memorandum, subject: Proposal for a National Policy on Outer Space, 25

February 1958.

53. Ibid.

54. Testimony, Loftus E. Becker, Department of State legal adviser, to

Special Senate Committee on Space and Astronautics, 13 May 1958, 18.

Attached to Meeker to Monroe Leigh, transmittal letter, 16 May 1958.

55. Ibid.

56. Gen Thomas D. White, “Air And Space Are Indivisible,” Air Force

Magazine, March 1958, 41; and preface to “Missiles and the Race toward

Space,” The United States Air Force Report on the Ballistic Missile , 1958, 22.

General White’s continuum statement certainly impacted the delimitation

issue. However, the focus of his statement must also have been the effort of

the Air Force to obtain or retain the aerospace function as part of the

on-going roles and missions discussions taking place within DOD.

57. Bowen, 185; and History, DCS/Plans and Programs, 166–67.

58. Staff Study, Air Doctrine Branch, 8 October 1958, 8–10.

59. Testimony, Gen Thomas D. White, chief of staff, USAF, Hearings

before House Committee on Science and Astronautics, Missile Development

and Space Sciences, 86th Cong., 1st sess., 73–74 cited in “Future Air Force

Space Policy and Objectives,” AF/XO study, July 1977, 13.

60. Hall, “Legal Problems,” 15, 136–37.

OPPOSITION

43
Chapter 3

Air Force as a Backseat “Driver”

in Space Law Debates

By 1956, as a result of the Air Coordinating Committee’s

(ACC) efforts at the International Civil Aviation Organization

(ICAO), the United States had established a position regarding

the evolution of outer space law. However, the United States

had yet to formulate an overall or general outer space policy.

From 1955 to late fall 1957, US foreign policy and its

concomitant international actions regarding outer space had

focused on disarmament and “space-for-peace.” These efforts

were driven by the Eisenhower administration’s effort to

obtain the free passage through space of intelligence-gathering

satellites. As described earlier, Air Force efforts had been

primarily focused on precluding an international treaty as

being premature. As time passed, the US position was

nonetheless evolving to a less hardened opposition to formal

statements of space policy and international law.

In November 1957, Secretary of State John Foster Dulles

wrote Secretary of Defense Neil H. McElroy to encourage direct

communication between the Departments of State and

Defense (DOD) on space issues. Dulles requested assistance

in formulating a US position regarding proposals for

inspections of objects to be sent through outer space to

ensure that such objects were for exclusively peaceful and

scientific purposes. Such cooperation was further encouraged

when State Department legal adviser Loftus Becker recommended to DOD general counsel Robert Dechert that the

Defense Department establish a task force to study and

cooperate with a State Department task force that had been

created to deal with space law. Dechert responded, on 15

January 1958, advising Becker that DOD had followed his

advice and that Monroe Leigh, assistant general counsel for

international affairs, had been assigned to establish the task

force and would be DOD’s point of contact with State.

In early 1958 the United States focused less on disarmament and more toward obtaining international cooperation for

45
peaceful uses of outer space.

This shift in focus was evidenced within the Air Force by

an Air University (AU) study

regarding the control of outer

space. This study, mentioned

earlier, diverged from the existing Air Staff position particularly regarding AU’s proposal

that an international group

should codify rules governing

the use of outer space. However, the AU study further

recommended that any space

vehicle on an orbit, trajectory,

or unapproved flight plan

deemed inimical to the interests of national security should

be considered hostile and that

appropriate military countermeasures be taken.1

 However, to

many Air Force leaders the policy of promoting the “peaceful

uses of space” meant a diminished role for Air Force space

interests and a threat to the nation’s security.2

Internal DOD Strife and Movement

toward a National Outer Space Policy

Despite the Eisenhower administration’s 1956 gag order on

military comments regarding space, disagreements within

DOD began surfacing outside the department by 1958. These

disagreements were between the military services and DOD

civilians. The disagreements were due in large measure to the

fact that the Eisenhower administration’s stalking-horse

agenda of establishing the principle of freedom of passage for

spy satellites in outer space had been created apparently, as

discussed above, by DOD civilians and perhaps a selected few

in the uniformed military services. These officials had not

shared this information with most of the uniformed military.

As a result, when the House Select Committee on Astronautics

and Space Exploration raised the issue in 1958 of how to deal

A-9

Secretary of Defense

Neil H. McElroy

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

46
with Soviet “spy” satellites, Lt

Gen Donald L. Putt, Air Force

deputy chief of staff for

development, testified that he

favored “summary destruction”

of such satellites.3

 His testimony was directly contradicted

by the testimony of Deputy

Secretary of Defense Donald

Quarles, who shortly thereafter

stated, “I can only express the

Defense Department’s view of it,

that, if they did place in orbit a

satellite that had such reconnaissance possibilities, we

would consider that it was

inoffensive in the sense that

(they were) in outer space where (they) could do us no harm

and we could not object to it.” 4

 Clearly, General Putt’s position

was diametrically the opposite of the Eisenhower administration’s goal of achieving freedom of passage in outer space

particularly for spy satellites.* The fact was that the Eisenhower

administration was pursuing a “far more sophisticated,

secretive, and complex path than many at the time appreciated”

and had no intention of racing the USSR into space. 5

 Air Force

leaders opposed the Eisenhower administration’s prohibition

against the deployment of space based weapons and viewed the

limitation as “dangerous and self-defeating.”6

Following the Sputniks, the US military perceived that it was

caught in a dilemma between Eisenhower’s space-for-peace

policy and its perceived traditional obligation to protect the

United States. Hence, in a February 1958 press conference,

President Eisenhower assured the nation that DOD would

remain in charge of military space projects even if a new space

agency was created.7

 In response, the services while publicly

A-10

Lt Gen Donald Putt

and Col Carl J. Reber

* Ironically for eight years, beginning in November 1950 when he endorsed an

early RAND recommendation of a reconnaissance mission for satellites, Putt had been

the most consistent Air Force and Pentagon proponent of such a satellite reconnais -

sance program.

AIR FORCE AS A BACKSEAT "DRIVER"

47
expressing acceptance of the space-for-peace policy also

supported efforts to establish US control of outer space, at

least, until international arrangements guaranteed the

commitment of all other nations to the same space-for-peace

policy. As Lee Bowen observes:

In seeking to adjust to the President’s somewhat extreme position and

their obligations to safeguard the defense of the United States, the

military did not criticize the space-for-peace policy but sought rather

to determine for themselves how effective international space law was

likely to be, how it could curtail their own activities, and how far they

should go in presenting a case for military space projects. 8

By the spring of 1958, because of the continuing disquietude

within the military with the space-for-peace policy, Secretary

McElroy requested that the National Security Council (NSC)

formulate a national policy on outer space to assuage the

restiveness of the US armed forces regarding their responsibilities in outer space. After reiterating “support” for the spacefor-peace policy, the military services, in their March 1958

responses to the NSC, argued against emasculating military

space programs.9

 The NSC’s efforts to formulate a US policy for

outer space moved faster than the Air Force sponsored Project

RAND study (which was initially for Air Force eyes only) of the

legal implications of the proposed NSC policy. The Air Doctrine

Branch, Deputy Chief of Staff (DCS) for Plans and Programs,

which had been coordinating on the NSC plan, forwarded the Air

Staff position to the Joint Chiefs of Staff (JCS). The JCS adopted

the Air Staff position and in turn recommended that the NSC

modify its proposal by essentially withholding judgement until

further study could be completed.10 However, on 18 August

1958, President Eisenhower signed NSC 5814/1 entitled

“Preliminary US Policy on Space,” which described in detail the

purpose and principles for US civilian and military space

programs.* The NSC policy that Eisenhower adopted generally

downplayed the role of the military and emphasized NASA’s

role in outer space. Air Force leaders were critical of the new

* Specifically, NSC 5814/1 provided that the US continue its IGY experiments,

recognize the UN’s interest in space, enter into bilateral agreements with other na -

tions to regulate space activities, invite other nations to participate reciprocally in

scientific projects, propose projects for multilateral participation, and assist free wo rld

nations on their space projects.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

48
NSC policy and its “leaders continued to chafe at what they

considered a policy that produced too modest a defensesupport space program and prevented offensive weapons

development altogether.”11

RAND finally completed its Air Force sponsored study in the

spring of 1959. The report helped solidify Air Force doctrine,

namely, that the United States avoid committing itself to any

position regarding space law. The RAND study was circulated

widely within DOD. Substantive intergovernmental discussions

relating to space issues continued to the point that NSC’s

Operations Coordinating Board (OCB)* on 18 March 1959 approved an “Operations Plan for Outer Space.” The OCB operations plan translated national security policy statements into specific US programs and courses of action, including the following:

1. Promote recognition of the right of passage through outer space of

any orbiting objects or vehicles not equipped to inflict injury or

damage upon the citizens, territories, or property of any State or any

property of its citizens.

2. Develop a catalogue of the possible legal issues with regard to outer

space programs and analyze specific cases with a view to initiating,

where necessary, the formulation of definite US legal positions.

3. Continue US initiatives in the UN and its Disarmament Commissi on

calling for technical studies of the design of an inspection system that

might make it possible to assure that the sending of objects through

outer space will be exclusively for peaceful and scientific purposes.

4. Consider bilateral efforts looking toward the design of such a system.

5. Further consider US policy concerning the scope of control and

inspection required to assure that outer space could be used only for

peaceful purposes, as well as the relationship of any such control

arrangements to other aspects of arms agreements. 12

* The OCB was composed of the under secretary of state (chair), the deputy

secretary of defense, director of central intelligence, director of US Information

Agency, director of International Cooperation Administration, and the president’s as -

sistants for national security affairs and operations coordination. President Eisen -

hower’s executive order created the OCB on 3 September 1953. Reporting to the

president through the National Security Council, the OCB was tasked to perform

detailed operational planning responsibilities regarding NSC policies, coordination o f

interdepartmental agency operational plans to carry out NSC policies, and the execu -

tion of NSC plans and policies. Further, OCB was authorized to initiate national

security policy. For a partial list of OCB objectives see appendix C.

AIR FORCE AS A BACKSEAT "DRIVER"

49
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 ROLE IN DEVELOPING OUTER SPACE LAW

50
Maj Gen Robert W. Manss, The Judge Advocate General of

the Air Force, as “one of the first major treatises in this new

field of law.”16 Others have described Menter’s thesis as

being the most comprehensive discourse on the subject of

space law up to that time. (See appendix D for a more

extensive listing of other conclusions and recommendations

from Colonel Menter’s thesis.) The passage of time has

validated many of Menter’s conclusions.

By the summer of 1959, according to an October 1959

RAND report, there was general agreement in the United

States regarding three precepts for outer space law. Leon

Lipson, author of the RAND report, noted that although the

three might be viewed by some as being “negative,” these

precepts “clarified basic questions of space law” and were

therefore “useful achievements.” The three principles were

A-11

Pin-on ceremony for Brig Gen Martin Menter. Maj Gen Kuhfeld (left) and Brig

Gen Manss (right) do the honors.

AIR FORCE AS A BACKSEAT "DRIVER"

51
1. An explicit, comprehensive agreement on a detailed code of law for

outer space would be premature at this time.

2. The question of the legal status of outer space is not significant

now.

3. The definition, in terms of altitude, of the boundary between

airspace and outer space is at best a low-priority question. 17

These precepts were in accord with the positions taken and

advocated by the Air Force.

Even as the space policy was being finalized in 1959, parts

of the military remained disgruntled with the Eisenhower

administration’s space-for-peace policy. In a 16 December

1959 memorandum regarding Air Force space policy to Maj

Gen Harold C. Donnelly, assistant DCS for plans and

programs, Maj Gen Richard M. Montgomery articulated the

military’s frustration with being caught between its obligation

to protect the United States and complying with Eisenhower’s

space-for-peace policy. Acknowledging the existence of the

space-for-peace policy, Montgomery stated, “the Air Force

believes that there is a great potential in space from a military

standpoint, and that this potential must be developed.” 18

The United States continued its effort to evolve its space

policy that culminated when President Eisenhower signed

NSC 5918/1, U.S. Policy on Outer Space, on 26 January

1960. This last policy statement continued to emphasize

NASA’s role in the US space program. In a 1961 study for

NASA, RAND concluded somewhat tentatively but importantly that,

At least provisionally, space flight appears to be considered not

inherently subject to exclusive sovereignty of an “under”-lying national

state. The threat that air sovereignty would be extended automatically

to space flight seems for the present to have receded. Both the US and

the SU [Soviet Union] have behaved as though the national air

sovereignty which they acknowledge all states to possess did not

extend so as to require them to obtain prior consent for geocentric

orbital “over”-flights or for deep-space-probe “over”-flights, though the

programming of a few shots whose missions might have been

considered “delicate” may have owed something to a desire to avoid

“over”-flight of certain territories. Official US statements have

gradually approached an explicit declaration that outer space is, in

general, free. Legal opinion in the US and the SU has on the whole

taken the same position, as has that in other countries. 19

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

52
The RAND report continued: “The final victory of the ‘freedom

of space’ should not be taken for granted. In the history of

international air law, roughly analogous notions prevailed for

a short time among some, perhaps most, of the interested

legal scholars, but opposing ideas and military considerations,

later fortified by economic interest, carried the day for national

air sovereignty.”20

Except for its yet to come Project West Ford, the Air Force

reached the high water mark of its influence on the

development of outer space law in 1958. Through its role at

the ACC, it clearly had been effective in advocating a go-slow

approach and in its efforts to achieve an ad hoc, decentralized

generation of the law based on practice. By its actions within

the ACC, the Air Force had succeeded in establishing the

principle that practice and technology drive the creation of

international outer space law as the fundamental thrust of US

policy. The RAND report sustained that momentum. Nonetheless, President Eisenhower had obtained his goal of achieving

freedom of passage in outer space. Ironically, for all the

tension between the Eisenhower administration and the

military regarding the president’s space-for-peace policy, the

Air Force sponsored approach of deriving outer space law

through practice and custom had assisted in providing the

means by which Eisenhower’s freedom of passage principle

had been achieved. All were just unhappy that the Soviet

launch of Sputniks I and II was the spark that set the events

in motion leading to general international acceptance of that

principle.

On 11 August 1960 President Eisenhower signed Executi ve

Order 10883, Termination of the Air Coordinating Committee.

EO 10883 transferred certain functions of the ACC to the

Interagency Group on International Aviation within the

Federal Aviation Administration. The demise of the ACC

spelled trouble for the Air Force. Once the ACC was gone,

the Air Force had no independent vehicle through which to

shape outer space law directly, thus Air Force legal activities

relating to outer space were confined to DOD. As a result,

the Air Force took a more passive stance while DOD and the

Joint Staff became more active in influencing policy direction.

AIR FORCE AS A BACKSEAT "DRIVER"

53
Air Force as a Background Player

in the Sovereignty Debate

While the US finally had a space policy, discussions

evolving from the policy as to its impact on sovereignty and

the legality of reconnaissance satellites continued into the

1960s. However, in general during the 1960s, the main

participants in the dialogue were from the Office of the

Secretary of Defense (OSD). The Air Force role was usually

limited to coordination and to meetings within DOD as

discussed below.21

During this time the United States and Great Britain

engaged in substantive discussions regarding outer space law.

In August 1961 the Air Force was asked to comment on a

British memorandum entitled “Limits in Space and Cognate

Questions.” The assistant judge advocate general Maj Gen

Moody R. Tidwell concurred that it was unwise to attempt to

define a line of demarcation where a nation’s sovereignty

ended. He noted that the focus of concern should be the

activity in space rather than the altitude at which it occurred.

“Protection of the subjacent state will argue against agreement

to any fixed distance as long as equal danger may exist from

above such point.” Further, the general expressed concern for

the definition of peaceful “purposes” and the disassociation of

“peaceful” from “military” purposes. He agreed with the caveat

included by the British that “nothing shall prevent the use of

military personnel or equipment for scientific research or any

other peaceful purpose in outer space.” Finally, General

Tidwell agreed with the position taken by the British that the

legality of the passage of reconnaissance satellites in outer

space over another state’s territory could be premised on the

self-defense provisions of Article 51 of the UN Charter.

In preparation for the 16th UN General Assembly in 1961,

the Department of State circulated a position paper proposing

a US sponsored initiative titled “Advocacy of a Regime of Peace

and Law in Outer Space.” Essentially, its purpose was to begin

UN discussions of various space law issues. Will Carroll, a

civilian attorney assigned to the Air Force JAG’s International

Law Division, represented the Air Force in meetings with

Benjamin Foreman, DOD assistant general counsel for

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

54
international affairs. Foreman had been designated by Cyrus

R. Vance, DOD’s general counsel, to define DOD’s legal

concerns in outer space for the former’s use in dealing with a

recent State Department outer space initiative.

After discussions with Carroll and representatives of JAGs

from the other services, Foreman recommended to Vance that

he object to any UN discussion of the legality of orbiting space

vehicles.22 The DOD background paper for a planning

luncheon regarding the Department of State initiative noted

that the Air Force continued to take the position that no

agreements concerning the use of outer space should be made

until the United States was assured that the agreements were

“genuinely reciprocal.” Also noted was the fact that the Air

Force had expressed a reservation that any agreements

A-12

Cyrus R. Vance (center, arms crossed) gets briefing in Vietnam while serving

as secretary of defense. Vance had earlier served as general counsel in DOD

and played a key role in formulating the Kennedy administration’s space

policy, especially as it related to international law.

AIR FORCE AS A BACKSEAT "DRIVER"

55
affecting satellites should not overcommit the US to furnishing

data from such satellites to other nations and should not

affect the operation of military satellites. With the Eisenhower

administration gone, the Air Force was out to stop any

resurrection of the concept of sharing the fruits of aerial

reconnaissance as originally embodied in Eisenhower’s “open

skies” proposal. The Air Force as well as the Joint Staff

expressed reservations regarding the Department of State

definition for outer space.

The consequences of adopting such a definition have not as yet been

fully explored; and that a rigid definition of outer space should not be

attempted prior to a detailed evaluation by all agencies concerned of

possible consequences of such a definition to the US and its allies. The

proposed definition would establish a space floor which might at some

future date be lower than the capabilities of very high flying aircraft. 23

The DOD position paper recommended that its reservations be

pointed out, that DOD and State further study these

reservations, and that the US issue a public statement on

outer space at the UN. DOD advocated that any formal

resolution be deferred.

In a memorandum summarizing his telephone conversation

with Richard Gardner (deputy assistant secretary of state for

international organization affairs), William P. Bundy (acting

assistant secretary of defense for international security affairs)

noted that State had agreed to the DOD position regarding the

definition of “outer space.” Bundy gave DOD clearance on

State’s proposal with the understanding that State would

proceed carefully in negotiations resulting from the resolution.

According to a handwritten note by Howard E. Hensleigh

(acting DOD assistant general counsel for international

affairs), Professor Lipson of RAND had “critical reservations

about the [Richard] Gardner approach,” that is, having the

United States even engage in such discussions. Bundy wrote

to Under Secretary of State for Economic Affairs George W.

Ball, stating that “we should not define the limits of outer

space.” Hensleigh provided a copy of the letter to Vance. The

Air Force JAG was apprised later that State had decided that

efforts to define outer space were premature. However, State

requested a briefing from DOD on the “technical developments

bearing on the definition of outer space.”

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

56
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 ambassa dor

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

AIR FORCE AS A BACKSEAT "DRIVER"

57
Activities of States in the Exploration and Use of Outer Space,

Including the Moon and Other Celestial Bodies (commonly

known as the Principles Treaty or the Outer Space Treaty)

again raised the demarcation issue in 1967. In May 1967,

Leonard Egan, Air Force assistant general counsel for

international affairs, submitted recommended changes to a

draft State Department position paper that Jerome Silber

(Foreman’s successor as DOD assistant general counsel for

international affairs) had provided him. Egan’s proposed

amendments reiterated the Air Force position. Additionally,

Col Paul E. Worthman (deputy director for plans and policy,

Office of Space Systems), in a memorandum to Col George D.

Overbey (chief, Policy Coordination Division, Policy Planning

Staff, Office of the Assistant Secretary of Defense for

International Security Affairs), concluded that making a

distinction between civil and military satellite observations

opened a Pandora’s box. Worthman pointed out that satellite

perigees “will probably stay above 60 miles—for the foreseeable future—with aircraft ceilings remaining below 20 miles.

The residual 40-mile band of space should not present a

pressing problem to anyone.” None of the Air Force comments

from Worthman or Egan were incorporated in either Col

Overbey’s or DOD’s comments to State. 27

When asked to comment on the State Department’s final

draft position paper, neither Charles F. Kent, assistant Air

Force general counsel, nor Col Worthman responded. Internal

DOD discussions continued on the issues of the utilization of

and definition for outer space throughout the summer of 1967

without direct Air Force input. OSD and the Joint Staff

continued to represent DOD at State. While State proposed to

have the United States encourage an international agreement

defining outer space—the Air Force advised DOD to resist

State’s efforts in this regard; the Defense Department adopted

the Air Force position. No formal definition of outer space has

ever been established.

The State Department not only had taken over the Air

Coordinating Committee’s function with respect to defining US

policy before international groups like the ICAO and UN but

had become dominant among government agencies regarding

coordination and creation of policy impacting outer space law.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

58
Further, within DOD itself, Secretary of Defense Robert

McNamara centralized policy making in the Office of the

Secretary of Defense at the expense of the service secretaries.

Clearly, the Air Force had been relegated to a less influential

role and had assumed a reactive posture regarding outer

space issues. As discussed below, beginning in 1961, the Air

Force JAG unsuccessfully encouraged the Air Force to reverse

its reactive role and undertake a proactive posture regarding

the development of outer space law.

By the early 1960s, the advent of manned space flights

made the creation of an international legal regime regarding

many outer space issues other than demarcation imperative.

A turning point in the “elaboration” of space law occurred on

20 December 1961 when the 16th General Assembly of the UN

unanimously passed Resolution 1721 sponsored by both the

United States and the USSR. Resolution 1721 provided the

general framework for what would eventually become the 1967

Outer Space Treaty.28 Part A of the UN resolution stated the

UN refusal to recognize any sovereignty in outer space, but

nonetheless concluded that outer space was to be free for

exploration and use by any and all states in conformity with

international law and that outer space was not subject to

appropriation by any state.

Even though the United States had become more amenable

to, and an actual supporter of concluding international

conventions regarding international outer space law, it was

not until 1967 that the UN actually adopted the first conven tion.

While the US government (generally State and the White

House) became more amenable to the passage of a principles

treaty, the Air Force clearly did not encourage or support the

passage of such an agreement. Contrary to what they had

done with air law, legal scholars did not advocate “freedom of

space” but proposed that international law should permit

extending sovereignty into outer space and place restrictions

on the use of outer space by nation-states. The military

establishment, on the other hand, supported sovereignty over

and regulated use of airspace under international air law, but

opposed sovereignty over and regulation of outer space.

AIR FORCE AS A BACKSEAT "DRIVER"

59
Notes

1. Bowen, 185; History, Directorate of Plans, DCS Plans and Programs.

HQ USAF, 166–67; and Col Martin B. Schofield, USAF, “Control of Outer

Space,” Air University Quarterly Review 10, no. 1 (Spring 1958): 101, and

attachment, Evaluation Staff, Air War College, “A Position on the

International Use of Space,” 104.

2. David N. Spires, Beyond Horizons: A Half-Century of Air Force Space

Leadership, rev. ed. (Maxwell AFB, Ala.: Air University Press, 1998), 93.

3. Jerome H. Silber, Office of the Assistant DOD General Counsel for

International Affairs, to chief, Air Force Division, Directorate for Security

Review (OASD/PA), memorandum, subject: “Preventive Self-Defense in

Space,” by Maj George D. Schrader, Case No. 66-3923, 11 May 1966.

4. House Committee on Astronautics and Space Exploration, Hearings:

House Report 11881, testimony of Deputy Secretary of Defense Donald A.

Quarles, 85th Cong., 2d sess., 30 April 1958, 1107–8.

5. Spires, 30.

6. Ibid., 272.

7. The birth of a civilian space agency (eventually named the National

Aeronautics and Space Administration) was troublesome to the military

services. Initially, the services were concerned that such an agency would

control even military space operations and later, after Eisenhower put that

concern to rest, the services were apprehensive about the budgetary

implications of such an agency.

8. Lee Bowen, “An Air Force History of Space Activities 1945–1959”

(Washington, D.C.: USAF Historical Division Liaison Office, August 1964),

185.

9. Ibid.

10. History, Directorate of Plans, Deputy Chief of Staff, Plans and

Programs, HQ USAF, vol. 17, 1 July–31 December 1958, 167. Hereafter

History, DCS/Plans & Programs.

11. Spires, 80.

12. Elmer B. Staats, executive officer, Operations Coordinating Board,

The Implementation of National Security Policy, presentation, Air War

College, Maxwell AFB, Ala., 27 November 1957.

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.

16. Maj Gen Robert W. Manss, “Judge Advocates and the Law of Outer

Space,” JAG Law Review, Special International Law Issue: Symposium on

the Law of Outer Space, 7, no. 5 (September–October 1965): 3.

17. Leon Lipson, discussion leader, Chapter III, “Some Problems of the

Near Future and Possible Approaches,” 5 May 1960, 79, quoted in Joseph

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

60
M. Goldsen, “International Political Implications of Activities in Outer Space:

A Report of a Conference, October 22–23, 1959,” R-362-RC (Santa Monica,

Calif.: RAND), 79.

18. Bowen, 187, cites Montgomery to Donnelly, memorandum, subject:

Draft Statement of Air Force Policy with Regard to Space.

19. Leon Lipson, “Current Problems of Space Control and Cooperation:

An Analytical Summary,” report for NASA (Santa Monica, Calif.: RAND, 1

July 1961), 2.

20. Ibid., 2–3.

21. The reduced profile of the Air Force and the insurgence of DOD

officials not only on space issues but in many DOD matters during

Secretary of Defense Robert S. McNamara’s tenure beginning in 1961 are

well-documented. See George M. Watson Jr., The Office of the Secretary of

the Air Force, 1947–1965 (Washington, D.C.: Center for Air Force History,

1993), 205–44.

22. Will H. Carroll, “The Role of the Air Force JAG in the Early

Development of the Law of Outer Space,” unpublished, n.d., 7. This study is

in the personal files of the author.

23. DOD Planning Luncheon, paper, United States Initiative at the 16th

General Assembly, 12 September 1961, 3.

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.

27. Leonard C. Meeker to Paul Warnke, memorandum, subject: Outer

Space Committee on the Study of Outer Space Definition, 19 May 1967; Col

George D. Overby to Jerome Silber, memorandum, subject: Position Papers

on Definition of Outer Space, 22 May 1967; Silber to Charles Kent,

memorandum, subject: Position Paper on the Utilization of Outer Space, 22

May 1967; Silber to Kent, memorandum, subject: Position Paper on

Definition of Outer Space, 23 May 1967; Leonard Egan to Silber,

memorandum, subject: Utilization of Outer Space, 23 May 1967; Col Paul

E. Worthman to Overby, memorandum, subject: Comments on Two Position

Papers—Utilization of Outer Space and Definition of Outer Space, 25 May

1967; Overby to Reis, memorandum, attaching DOD Comments on Position

Papers Regarding Definition of Outer Space and Utilization of Outer Space,

26 May 1967; UN Committee on Peaceful Uses of Outer Space, Legal

Subcommittee, Position Paper on Definition of Outer Space, 19 June 1967,

Geneva, Switzerland; Gen Earle G. Wheeler, chairman Joint Chiefs of Staff,

to secretary of defense, subject: Position Paper for Outer Space Legal

Subcommittee, 22 June 1967; Wayne Anderson to Overby and Silber,

memorandum, subject: Definition of Outer Space, 14 August 1967; all of

AIR FORCE AS A BACKSEAT "DRIVER"

61
the above are attached to Silber to Anderson, memorandum, subject:

Definition of Outer Space, 16 August 1967.

28. J. P. Lorenz, Information Office, United Nations Publications, “Outer

Space,” Historical Project, 29 October 1968.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

62
Chapter 4

Project West Ford

Even as it was resisting efforts in the early 1960s to

formalize international outer space law, the Air Force was

involved in Project West Ford, a project that would, inadvertently but directly, impact the development of space law. As

proposed, West Ford was designed as an experiment to

determine whether a small band of orbiting metal strips could

be used as a military network providing a “positive, reliable,

and survivable full-time communications capability between

commanders and their forces.”1

 Project West Ford caused

significant debate within the United States and the international scientific community. It raised the legal issue as to

whether experiments that potentially could interfere with

scientific research should be conducted at the sole discretion

of any individual nation-state.2

In 1958 the Air Force contracted with the Massachusetts

Institute of Technology (MIT) Lincoln Laboratory to study the

feasibility of using a widely scattered belt of small metallic

strips in orbit around the earth as the primary component of a

space-based, worldwide communication system. Lincoln

Laboratory, in its Barnstable study, concluded that such a

system offered the advantages of physical invulnerability and

antijamming protection.3

 Given that insufficient information

was available to design the system, the Air Force proposed

Project West Ford to fill this void. 4

 Initially the Air Force

planned to disperse 75 (later 110) pounds of disposable

dipoles (thin strips of tin alloy) in outer space thereby creating

an orbital belt 30 miles in diameter off which communications

signals could be reflected. The Lincoln Laboratory was the Air

Force contractor for the project.

The proposal proved controversial particularly with radio

and optical astronomers, who were concerned that the belt

might interfere with astronomical measurements particularly

if the dipoles stayed in orbit beyond their projected one- or

two-year life cycles.5

 Astronomers feared that the reflectivity of

the belt would harm astronomers’s ability to observe outer

63
space. In December 1959, the Space Science Board (SSB) of

the National Academy of Sciences appointed an ad hoc

committee to examine the consequences of West Ford. In July

1960 the SSB determined that the astronomers had raised

legitimate concerns and appointed a special committee to

evaluate the project extensively. The SSB concluded that “the

first experiment involving 75 pounds of material would not be

damaging to astronomy.”6

 In November 1960 and again on 3

January 1961, Leo Goldberg, a Harvard University professor

of astronomy, wrote to Lloyd V. Berkner, chairman of the

National Academy of Sciences Space Science Board and father

of the IGY.7

 Professor Goldberg challenged the SSB findings,

complaining that the board had failed to evaluate the West

Ford proposal sufficiently. Goldberg’s main concern was not

that the SSB had not recommended that West Ford be

stopped, but that the SSB should have more carefully

evaluated the Air Force proposal. The SSB discussions and

decision regarding West Ford were classified. As a result,

Goldberg noted that if the astronomy community had the

burden of demonstrating why the project should not be

carried out, then the data supporting the project, which had

previously not been made available, needed to be circulated

among concerned astronomers.8

Berkner responded to Goldberg by noting that “mere

unsubstantiated expressions of fear of the experiment or its

successors” would not suffice and asked that the astronomy

community substantiate its concern. Subsequently, Berkner

did raise the astronomers’ concerns in correspondence with

other members of the SSB. Further, the SSB continued to

recommend that the technical aspects of the project be made

public and offered astronomers the opportunity to observe and

measure West Ford.9

 The SSB issued a report in August 1961.

Contained in the SSB report was a letter from Jerome B.

Weisner, the special assistant to President Kennedy for

science and technology, commending the SSB for its study of

Project West Ford. Weisner noted that, as a result of the SSB’s

actions, the government had established a policy regarding

the project. The government concluded that the project would

be a one-time shot of short-lived duration and that any further

launches of similar experiments would wait until the results of

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

64
the first effort were fully evaluated, including feedback from

astronomers worldwide. In August the Kennedy White House

issued the following statement:

No further launches of orbiting dipoles will be planned until after the

results of the West Ford experiment have been analyzed and

evaluated. The findings and conclusions of foreign and domestic

scientists (including the liaison committee of astronomers established

by the Space Science Board of the National Academy of Sciences)

should be carefully considered in such analysis and evaluation.

Any decision to place additional quantities of dipoles in orbit,

subsequent to the West Ford experiment, will be contingent upon the

results of the analysis and evaluation and the development of

necessary safeguards against harmful interference with space

activities or with any branch of science.

Optical and radio astronomers throughout the world should be invited

to cooperate in the West Ford experiment to ascertain the effects of the

experimental belt in both the optical and the radio parts of the

spectrum. To assist in such cooperation, they should be given

appropriate information on a timely basis. Scientific data derived from

the experiment should be made available to the public as promptly as

feasible after the launching.10

The issuance of this policy statement did not quell the

astronomer’s dissent.

Later in August, the International Astronomical Union (IAU)

passed a resolution appealing “to all governments . . .

launching space experiments which could possibly affect

astronautical research to consult with the IAU before

undertaking such experiments and to refrain from launching

until it is established beyond doubt that no damage will be

done to astronautical research.”11 A second IAU resolution

thanked the US government for announcing its plans well in

advance of launching West Ford and for assuring that future

launches would not be undertaken unless sufficient

safeguards were obtained against harmful interference with

astronomical observations. Nevertheless, the resolution

expressed concern that the dipole belt would be long-lived and

opposed the experiment until proven otherwise. After the IAU

General Assembly meeting, Goldberg again wrote Berkner and

informed him of the IAU’s actions. He argued that the SSB

report failed to indicate that its conclusion that the project

would have no adverse affect on science was premised on

PROJECT WEST FORD

65
Project West Ford being short lived. Professor Goldberg noted

that subsequent discussions indicated the duration of the

experiment depended on the altitude of dispersal. 12

The Air Force launched a Project West Ford package on 21

October 1961, but the dipoles failed to disperse properly.

Subsequent to the abortive launch, the astronomy community

played a more active role in the SSB, including having its

members placed on the SSB’s study group. As a result, in the

spring of 1962, the SSB West Ford Study Group recommended that any future dispersion of dipoles occur at an

altitude that would ensure that any belt created would be

short lived and that information regarding the project would

be communicated quickly to the international scientific

community, particularly astronomers.13

In the meantime, in 1961, the International Council of

Scientific Unions (ICSU), to which all major countries belong,

tasked its Committee on Space Research (COSPAR) to

consider problems of contamination in outer space. The ICSU

directed that COSPAR take action regarding West Ford.

COSPAR deplored West Ford and demanded prior consultation. In May 1962, COSPAR established the Consultative

Group of Potentially Harmful Effects of Space Experiments.

This committee, consisting of international scientists, would

evaluate and make recommendations regarding proposed

space experiments. In the face of such opposition and Soviet

Union condemnations at the UN, Ambassador Adlai E.

Stevenson announced that

The U.S. would conduct no more such experiments until the results of

this one were fully analyzed, and in any case none without proper

scientific safeguards;

The results of the experiment would be disclosed to interested

scientists of all nations;

Prior consultations with scientists would precede any further activity

of this nature;

Advance notice of the launching of such experiments would be given

in accordance with the procedure recommended by the General

Assembly.14

On 9 May 1963, a second West Ford package was launched

and the dipoles successfully dispersed. About eight weeks

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

66
later, the SSB issued its final report on West Ford concluding

that the project had harmed neither optical nor radio

astronomy. COSPAR’s Consultative Group also issued a report

concluding that West Ford had caused no adverse effect on or

interference with either optical or radio astronomy. Nevertheless, the consultation provision “hammered out in the

course of discussions of Project West Ford . . . [was] included

in the space [principles] treaty” completed in 1968. 15

Review of the Air Force plans for Project West Ford reveals

no discussion about the impact of the project on international

law. Because of Project West Ford and the debate that ensued

regarding it, the United States established the policy that the

scientific community would be consulted in the future should

West Ford be extended. Such consultation with the scientific

community was subsequently included in Article IX of the

Treaty on Principles Governing the Activities of States in the

Exploration and Use of Outer Space (the Principles Treaty). 16

The Air Force never intended nor had any idea that its Project

West Ford might impact outer space law. When the consultation provision was included in the Principles Treaty, the Air

Force had unintentionally but clearly and directly impacted

the development of international outer space law.

Notes

1. “Proposed System Package Plan (abbreviated) for the Program, 861;

Phase II (West Ford Phase II Program),” revised 1 November 1962, 1.

2. R. Cargill Hall, “The International Legal Problems in Space Exploration, An Analytical Review” (master’s thesis, California State University at

San Jose, June 1966), 41–42.

3. Proposed System Package Plan for the West Ford Phase II Program,

n.d., 10. The Barnstable study was conducted during the summer of 1958

for the Army Signal Corps. The final report of the Barnstable group, “A

Short Study of Communications Theory Applied to Military Communications Systems,” dated 30 October 1958, proposed Project Needles, which

eventually became Project West Ford.

4. Ibid., in its entirety.

5. Hall, 41. Later in August 1960, even Gen Laurence S. Kuter,

commander in chief, North American Air Defense Command (NORAD),

complained to JCS about Project West Ford. He questioned whether the belt

might inhibit NORAD’s detection and tracking systems. In November the

JCS reassured General Kuter regarding his concerns.

6. Leo Goldberg to Lloyd V. Berkner, 3 January 1961.

PROJECT WEST FORD

67
7. Col Martin Menter, “Astronautical Law,” (thesis, Industrial College of

the Armed Forces, Fort Lesley J. McNair, Washington, D.C., May 1959), 22.

8. Goldberg to Berkner.

9. Berkner to Goldberg.

10. White House policy statement, “Project West Ford: United States

Policy” attached to letter, Weisner to Berkner, 11 August, 1961.

11. Hall, 42.

12. Goldberg to Berkner, 30 August 1961.

13. SSB West Ford Study Group Draft memo 223, rev., 2 March 1962.

14. Maj Norman Thorpe, “The Process of Space Law Development,”

International Law Division, USAF, Office of Judge Advocate General, paper

delivered at Major Command Judge Advocate Conference, Bolling AFB,

D.C., 16 November 1967, 3.

15. Ibid.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

68
Chapter 5

Maj Gen Albert M. Kuhfeld

and Air Force Leadership

of Space Law Development

Before the Project West Ford controversy, the Air Force had

assumed a reactive posture regarding the development of the

law. However, even as Project West Ford was stirring

controversy, the judge advocate general and many in the Air

Force judge advocate general (JAG) corps were becoming

restive with this approach. Several years before Project West

Ford, Col Richard C. Hagan,* a member of the Headquarters

Air Force JAG staff, advised Maj Gen Reginald C. Harmon,†

the first judge advocate general of the Air Force, that the Air

Force could not wait until events had passed it by before it

formulated a legal position regarding space. Colonel Hagan

further advised General Harmon that the Air Force should

take a leadership role on the issue. 1

While Hagan and others in Headquarters Air Force JAG

were interested in space matters, General Harmon was not

particularly thus inclined.2

 He did, however, participate as a

panelist in an October 1959 space law symposium sponsored

by a Reserve JAG flight held in New York City. The panel

included “notable jurists, attorneys at law and members of the

United Nations.” General Harmon restated the Air Force

position, which was contrary to the positions taken by several

of the other panelists. Harmon asserted that it would be

“foolhardy to rush to establish a code of general space law at

this time.” He further noted to the effect that “law is

evolutionary and that the people of the earth do not yet have

sufficient scientific knowledge of the physical nature of space

to draft rules for its regulation.” The general argued that

“rather than establish premature rules which could prove

dangerous because their possible effects cannot be foreseen, it

*

 Col Hagan, a JAG reservist, was eventually promoted to brigadier general.

†

 General Harmon served as The Judge Advocate General (TJAG) of the Air Force

from 8 September 1948 through 30 March 1960.

69
would be more logical to consider each problem individually. ”

General Harmon “explained the practical and political

difficulties inherent in having the legislatures or other state

machinery of individual nations ratify any kind of

international code of general space law.” 3

Colonel Hagan’s advice eventually found more fertile ground

with General Harmon’s successor, Maj Gen Albert M. Kuhfeld,

who became the Air Force acting judge advocate general on 1

April 1960. General Kuhfeld was much more interested in

space issues than his predecessor and readily perceived a

value in the Air Force being active in dealing with the legal

issues associated with outer space matters. Aware that the

sovereignty in outer space and other aerospace legal issues

needed resolution, he advocated that Air Force leaders take a

proactive posture in these areas.

General Kuhfeld, as explained below, reasoned that the Air

Force would be better served by taking a leading role in

settling these issues, rather than having them resolved by

others. In a speech to the Association of General Counsels of

American Industry in November 1960, he discussed the

evolution of international law and its relationship to outer

space law. He described the various options for defining the

line of demarcation between airspace and outer space. He

stated his agreement with UN Secretary General Dag

Hammarskjöld’s position that outer space should be free from

appropriation by any state. General Kuhfeld reiterated, from

Col Martin Menter’s thesis, the Roman maxim ex facto oritur

jus (law arises from fact) as being applicable to outer space

law. He restated the Air Force position that had evolved in the

1950s, namely, that “we have yet, I think, too many square

pegs and round holes to think of codifying any space law.”

However, the general recognized that

as scientific data is acquired, problem areas will lend themselves to

solution. As the scientist and attorney agree as to factual sufficiency,

the particular problem area may be presented to the representatives of

various national governments for resolution into mutually acceptable

rules to govern space activities. . . . For example, we now have

experienced the development of nose cones that survive destruction by

the atmosphere. We should immediately recognize and agree that

damage caused to persons or property be redressed by the nation

launching the particular space vehicle.4

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

70
He concluded that outer space law would evolve as law

generally had, and that the UN, which was already

undertaking efforts to identify legal problems incident to the

exploration of outer space, was the appropriate instrument to

lead such discussions. General Kuhfeld’s briefing was given

wide exposure, having been published in the Air Force

Information Policy Letter for Commanders and in the Senate

Committee on Aeronautical and Space Sciences’s compilation

of selected worldwide space law papers. 5

As had been the case in the 1950s within the Air Force, the

judge advocate general and the secretary’s general counsel

were the most active regarding evolving space law issues. In

February 1961 General Kuhfeld noted that “the Air Force has

taken the lead in the exploration and development in

aerospace medicine, we likewise now may make a substantial

contribution at a most opportune time to the development of

the law concerning aerospace activities.” Accordingly, General

Kuhfeld requested that Air Force chief of staff Gen Thomas D.

White approve Air Force sponsorship of an aerospace law

symposium. The symposium was to include luminaries from

the scientific, legal, and political fields. General Kuhfeld

further noted that the American Bar Association (ABA) had

accepted the position that current military satellite programs

were within the meaning of “peaceful use of outer space.” He

observed that it would be in the Air Force’s interests to expand

on the ABA’s conclusion regarding satellites. Kuhfeld asserted

that using Air Force technical terminology regarding space as

the standard terms of art would facilitate resolution of such

issues more consistently with US national interests. 6

In the spring of 1961, General Kuhfeld met and discussed his

proposal with Gen Richard M. Montgomery, assistant vice chief

of staff.* Colonel Menter accompanied General Kuhfeld to this

meeting, which took place about one year after Francis Gary

Powers’s U-2 was “downed” in the USSR. 7

 After General Kuhfeld

introduced Colonel Menter to General Montgomery as one of the

US’s experts in international space law, Montgomery asked

*

 As noted earlier, Montgomery had expressed a concern for the dilemma that the

services felt they faced as a result of President Eisenhower’s space-for-peace/“open

skies” policy.

KUHFELD AND SPACE LAW

71
Menter if the United States

had violated international law

by having Powers fly over

Soviet territory. When Menter

responded in the affirmative,

General Montgomery angrily

retorted to the effect that the

colonel “didn’t know what he

was talking about.”8

 Both

Kuhfeld and Menter were

taken aback by Montgomery’s

reaction. The meeting deteriorated further when the subject

of General Kuhfeld’s proposed

space law symposium was

raised. General Kuhfeld had

made a sales pitch for the

symposium as a way of encouraging Air Staff interest in

the issue and as a means for protecting US security interests.

General Montgomery responded that the Air Force had little

if any interest in the formulation of space law. He added

almost as an afterthought that if General Kuhfeld wanted to

push the issue further, additional staff work needed to be

completed regarding the symposium proposal and then the

proposal needed to be referred to the Air Force Council. Both

General Kuhfeld and Colonel Menter left the meeting dejected.

Nevertheless, in August 1961, responsive to Montgomery’s

suggestion, Menter submitted a briefing for the Air Force

Council to General Kuhfeld. Colonel Menter included an expanded version of the symposium proposal, which emphasized

the need for Air Force participation in the development of

aerospace law.9

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

A-13

Lt Gen Richard M. Montgomery, Air

Force assistant vice chief of staff

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

72
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

KUHFELD AND SPACE LAW

73
Federal Aviation Administration and available to discuss the

issues and to assist regarding the symposium. 11

In a January 1962 memorandum to Maj Gen Cecil H.

Childre, assistant deputy chief of staff for plans and programs,

General Montgomery responded to Kuhfeld’s urgings. 12

Montgomery requested a “staff position” regarding the outer

space delimitation issue from plans and programs for

presentation to the Air Force Council no later than midFebruary. Finally, given General Kuhfeld’s memorandum

indicating a number of activities occurring in regard to outer

space and their potential impact on the Air Force, General

Montgomery had apparently begun to realize that events were

not waiting for the Air Force. In a memorandum to General

Childre, Montgomery stated, “I am certainly disturbed by the

fact that outside agencies who have no understanding or

appreciation of the military operation in space may be setting

in concrete, with the help of the Russians, some international

law which will really tie the Air Force hands for future

operation in space.”13 Clearly, General Montgomery was

beginning to shift his initial position that space law was not

an issue of concern to the Air Force.

Later that month General Kuhfeld provided General Childre

with a detailed working paper on the “pertinent legal

considerations relating to what will evolve as the USAF

Perspective on a Law of Outer Space.” Included in the working

paper were his “Ten Precepts,”* which he argued needed to be

remembered when formulating the Air Force position. He

noted that while aerospace law was in its “infancy,” it

nevertheless would have a direct impact on Air Force roles

and missions. He proposed that the Air Force establish a

permanent Air Staff working group on aerospace doctrine,

which he described as being “the marriage of legal considerations and operational plans and requirements.” 14 General

Childre referred Kuhfeld’s working paper to the Air Staff and

the Joint Staff. Because the Joint Staff was already working

on the subject of defining sovereignty in outer space, Childre

noted that Gen Curtis E. LeMay, Air Force chief of staff, was to

be briefed on the Air Force position during the first week of

*

 See appendix E.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

74
February. Childre informed General Kuhfeld that there was no

time for a presentation to the Air Force Council and that the

requirement to present such was withdrawn. While agreeing

that the matter merited attention, General Childre opposed

the permanent working group noting that a nucleus of such a

group already existed and that the current arrangement

should be continued. He proposed as an alternative an

informal working group chaired by a JAG official. Childre

designated two members of his staff to serve on the working

group.15

The informal working group was created in 1962. While JAG

and plans and programs participated and communicated well,

other parts of the Air Staff did not. This lack of communication was noted by Col John J. Latella, chief, International

Affairs Division, JAG, in an undated memorandum to General

Kuhfeld. Colonel Latella opined that the informal structure

A-14

Gen Curtis E. LeMay, chief of staff of the Air Force, and General Kuhfeld,

reviewing documents relating to the Air Force position on outer space law.

KUHFELD AND SPACE LAW

75
simply was not working and that a more formal structure was

needed to be effective. In response to Latella’s complaints and

parroting his arguments, Kuhfeld asked Childre in May to

reconsider his initial opposition. General Kuhfeld requested

that General Childre concur in the establishment of a

permanent working group to be chaired by a member of the

latter’s office. To support his position, Kuhfeld asserted that

the Air Force was “continuing to operate . . . on the same

‘catch-as-catch-can’ basis as” it had previously. He further

argued that “the technical, operational and legal aspects of the

Air Force role in outer space have not yet been precisely

defined, however, and we are still a long way from a firm

statement of policies and procedures.” Accordingly, he noted

that the standard, routine Air Staff coordination system was

inappropriate for handling these issues. Finally, he wrote, “the

fast pace of current developments, domestic and international,

in the evolution of the Air Force role in the outer space region

of the aerospace poses a requirement for the capability to

react quickly, effectively and authoritatively, in order that the

Air Force position on each item of interest may be determined

and represented to the best effect.” 16

In August, General Childre’s successor, Maj Gen Horace

M. Wade, responded to General Kuhfeld. General Wade

noted that the Air Force Council had decided in July 1962

to have the assistant deputy chief of staff for research and

technology (AF/RDC) be the “focal point” for all space

matters. Wade also noted that that within AF/RDC an office

would be established for the specific purpose. He noted that

this focal point in AF/RDC would be responsible for only

coordination of these efforts but that the functional offices

within the Air Staff would retain responsibility for handling

space matters. As General Kuhfeld had earlier requested,

General Wade established a permanent working group to

consider the policy and legal aspects of space doctrine.

Among the responsibilities of the permanent working group

was the review of interagency position papers on space

policy referred to the Air Force.17

Though no response was ever made to his initial idea for an

Air Force sponsored space law symposium, General Kuhfeld

had succeeded in helping to create (from the informal

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

76
structure) a permanent working group to coordinate the Air

Force position. Eventually the Air Force JAG did sponsor a

space law symposium in July 1964 in Washington, D.C. Brig

Gen Hagan, without Air Force financial assistance and at his

own personal expense, and with General Kuhfeld’s support,

pulled together the first Air Force space law symposium. He

did the staff work and accomplished at least informally what

Generals Kuhfeld and Menter earlier had not been able to

achieve.18

The metamorphosis of the growing Air Force interest in

space law and doctrine continued, eventually leading to the

creation of the Space Panel within the Air Force board structure.19 However, before the creation of the Space Panel, several

conventions and treaties were negotiated. A review of the Air

A-15

Brig Gen Richard C. Hagan. While serving on the JAG staff at HQ USAF, he

pressed for a more aggressive stance by the Air Force on the development of

international law on space issues. He supported the first Air Force space law

symposium and personally financed the costs of the conference.

KUHFELD AND SPACE LAW

77
Force’s participation during the passage of these various

international conventions, from the Principles Treaty* to the

Moon Treaty,† reveals an Air Force that was content to simply

coordinate and not originate. Although the Air Force JAG has

had an attorney assigned to space matters since the 1950s,

only relatively recent actions within the Air Force—

particularly the creation of Space Command, the dedication of

personnel assets within the Air Staff as “space experts,” the

biennial Conferences on the Law Relating to National Security

Activities in Outer Space, and a more aggressive approach by

the JAG regarding space matters, indicate that General

Kuhfeld’s recommendation for a more active leadership

posture may now be coming to fruition.

Notes

1. Maj Gen Richard C. Hagan, USAFR, transcript of interview by

Colonels David M. Lewis and Ronald J. Rakowsky, US Air Force Oral

History Program, November 1987–May 1989, USAF Historical Research

Agency, 66. (Hereafter Hagan, “Oral History.”)

2. Ibid., 66–67.

3. “Space Law Symposium,” US Air Force JAG Bulletin 1, no. 5

(November 1959): 38.

4. Maj Gen Albert M. Kuhfeld, speech, Legal Problems of Space

Exploration, to the Association of General Counsel, Litchfield Park, Arizona,

18 November 1960.

5. “Legal Problems of Space Exploration,” Senate Committee on

Areonautical and Space Sciences, 87th Cong. 1st sess., 22 March 1961,

73–77.

6. Kuhfeld to White, memorandum; subject: Proposed USAF Aerospace

Law Symposium, 24 February 1961.

7. Contrary to Khrushchev’s announcement on 1 May 1960 and the

currently continuing public perception that Powers’s U-2 had been shot

down, the official explanation has always been that the plane was never

actually hit. On 31 May 1960, Director of Central Intelligence Allen W.

Dulles testified before the Senate Foreign Relations Committee that Powers

plane had never been hit by Soviet ground-to-air missile. But Dulles further

tested that the CIA had concluded that a flameout or an undetermined

mechanical malfunction caused Powers to come down from the U-2’s

* Treaty on Principles Governing the Activities of States in the Exploration and Use

of Outer Space, Including the Moon and Other Celestial Bodies

† Agreement Governing the Activities of States on the Moon and Other Celestial

Bodies

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

78
normal operating altitude to a lower altitude where his U-2 was no longer

immune from Soviet missiles and planes. The critical point here is that

Powers was no longer operating at a safe altitude. At that time, the CIA was

not sure what had actually happened to Powers’s U-2.

L. Fletcher Prouty, in his book The Secret Team: The CIA and its Allies in

Control of the United States and the World (Englewood Cliffs, N.J.:

Prentice-Hall, 1973), asserts that a “secret team” deliberately scheduled the

Powers’s flight for the 1 May date without Eisenhower’s prior approval.

Prouty contends that the secret team then sabotaged Powers’s U-2 by

disrupting or ceasing the hydrogen flow to the U-2’s engine so that the U-2

would be forced down within the USSR airspace. The United States would

thereby be forced to admit that it had been violating Soviet air space, thus

disrupting the peace summit that was scheduled shortly thereafter.

The CIA, in its recently published declassified version of the history of the

U-2 program, states that Eisenhower approved a mission to be flown no later

than 1 May 1960. This history states that a Soviet SA-2 surface-to-air

missile (SAM) had “detonated close to and just behind the aircraft and

disabled it at 70,500 feet above the Sverdlovsk area” causing the plane to go

out of control and spiral to earth. Thus, the CIA history implies that Powers

may have been operating at an assigned altitude lower than 72,000 feet,

apparently contradicting Dulles’ testimony that a mechanical malfunction or

other undetermined problem had caused Powers to descend from the U-2’s

normal operating altitude of 72,000 feet. Gregory W. Pedlow and Donald E.

Welzenback, The CIA and the U-2 Program, 1954–1974 (Langley, Va.:, Center

for the Study of Intelligence, Central Intelligence Agency, 1998), 176–77.

CIA project officials at first speculated that Powers had been operating

too low because of pilot error or due to a mechanical malfunction. “Powers

maintained that he had been flying at the assigned altitude and had been

brought down by a near miss of a Soviet SAM.” (ibid., 177.) In a recent

conversation with this author, Powers’s son said his father always disputed

the allegation of pilot error and insisted that he had been flying at the

altitude at which he had been directed to fly. Had Powers been flying at

72,000 feet he would have been above the effective range of any known

Soviet antiaircraft or air defense weapons (ibid., 93). Whether a mechanical

malfunction caused Powers to descend from the U-2’s normal, safe altitude

of 72,000 feet and thus brought him within range of Soviet air defenses or

whether he was directed to fly the lower altitude (seemingly implied in CIA

history) remains unclear.

Based on information obtained in March 1963 (long after Dulles’

testimony) from a US air attaché in Moscow, the CIA learned that indeed

the Sverdlovsk SA-2 battery had fired a “three-missile salvo that, in addition

to disabling Powers’s plane, also scored a direct hit on a Soviet fighter

aircraft sent aloft to intercept the U-2.” (Ibid.) Since Powers’s aircraft was

disabled at 70,500 feet, a valid and unanswered question remains as to why

was his aircraft operating a critical 1,500 feet below its normal operating

altitude at the time it was disabled.

KUHFELD AND SPACE LAW

79
8. Clearly, Menter was right and Montgomery wrong. Even CIA director

Dulles indirectly admitted that the US had violated Soviet airspace by the

passage of the U-2 through it, but justified the espionage nature of the

flights as being less offensive than other means of intelligence gathering.

Further, Dulles justified the U-2 program as part of an effort to prevent a

surprise attack on the US, which justification had also been made by

President Eisenhower and Secretary of State Christian Herter. Specifically,

President Eisenhower in his statement about the downing of Powers’s U-2

made as his first point the fact that “no one wants another Pearl Harbor.”

Brig Gen Martin Menter, USAF, Retired, memorandum for record, subject:

Oral Interview, Pentagon, 21 February 1990, and transcript of interview by

Cols David M. Lewis and Ronald J. Rakowsky, US Air Force Oral History

Program, July 1987–August 1989, 73–74.

9. Ibid.

10. Kuhfeld to Gen Richard M. Montgomery, memorandum, subject:

Formulation of Air Force Positions in Aerospace Law, 8 December 1961.

11. Ibid., 7.

12. Montgomery to Childre, memorandum, subject: Aerospace Law, 4

January 1962. Information copy to the Air Staff, SAFGC, and SAFMS.

13. Ibid.

14. Kuhfeld to Childre, memorandum, subject: Aerospace Law, 19 January

1962.

15. Childre to Kuhfeld,, subject: Aerospace Law, 2 February 1962.

16. Kuhfeld, to Childre, memorandum subject: Air Staff Working Group

on Aerospace Doctrine, 18 May 1962.

17. Maj Gen Horace M. Wade to Kuhfeld, memorandum, subject: Air

Staff Working Group on Aerospace Doctrine, 22 August 1962.

18. “The Legal, Socio-Technological Problems of Space Exploration,”

United States Air Force JAG Bulletin 6, no. 5, 11; Hagan, “Oral History,”

38–41, 62–63, 66–67.

19. Kuhfeld, briefing paper, Proposed Briefing to Air Force Council on

USAF Role in Development of Aerospace Law, undated.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

80
Chapter 6

The 1972 Liability for

Damages Convention

As described earlier, the Air Force strongly advocated the ad

hoc approach to the development of outer space law. Yet, even

when practice or custom had developed to the point that some

states pushed for codification of these customs into conventions, the Air Force resisted their passage. The one notable

exception was the Agreement on the Rescue of Astronauts, the

Return of Astronauts and the Return of Objects Launched into

Outer Space (Rescue and Return of Astronauts Treaty). The

Air Force was ardently against US approval of the Treaty

Banning Nuclear Weapon Tests in the Atmosphere, in Outer

Space and Under Water. Likewise, but less vehemently, it

opposed the Treaty on Principles Governing the Activities of

States in the Exploration and Use of Outer Space, Including

the Moon and Other Celestial Bodies (Principles or Outer

Space Treaty). The effectiveness of Air Force opposition to

such treaties was muted or diminished by its generally

reactive posture within the Defense Department in the early

1960s.

In his history of the Air Force JAG office from 1963 to 1965,

Will Carroll examines the involvement of the Air Force’s

International Law Division in discussions regarding draft

State Department position papers for the Principles, Liability,*

and Rescue and Return Treaties. Carroll’s brief description of

this review and coordination process essentially confirms the

generally reactive posture of the Air Force from 1963 to 1965

to these developing international outer space conventions. 1

In July 1959 the United Nations’ Committee on Peaceful

Uses of Space (COPUOS) first recognized the need for a

liability convention.2

 By that date there had been 30 space

launches.3

 Pressure to resolve the liability issue increased as

the number of launches rose. However, little progress was

* Convention on the International Liability for Damage Caused by Space Objects.

81
discernable until 1962, when the United States introduced

before COPUOS the first formal “proposal,” though not in the

form of a draft treaty, to deal with the liability issue. By then,

the US and USSR had launched or attempted to launch more

than 150 space objects. In 1964 when the United States

introduced the first actual treaty, the number of launchings

was approaching four hundred—with the majority initiated by

the United States.4

 Nonlaunching nations were, by then,

particularly restive over the liability issue.

Air Force participation in the internal US negotiations

regarding the liability convention began with the development

of a US sponsored proposal to study the issue. These internal

discussions concluded with the preparation of a final position

paper and instructions to the US delegate to the COPUOS

A-16

Will Carroll receiving an award for superior performance. Carroll wrote a

history of the Air Force JAG office’s role in the coordination and review

process on the many international space law conventions under negotiation in

the late 1950s.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

82
negotiations. From 1962 until 1970, the Air Force’s role in the

process consisted primarily in commenting through the DOD

on the various proposed draft agreements, position papers,

and delegate instructions. In only a relatively few instances

was the Air Force involved in direct discussions with the State

Department.

The first apparent Air Force involvement regarding the

liability issue occurred in May 1962 when Col John J. Latella

and his associate, Will Carroll, provided comments to the Air

Force Directorate of Plans on the issue of liability for space

vehicle accidents. The operational Air Force had concerns

about various liability standards. Colonel Latella noted that if

the principle of “absolute liability” (liability not based on fault)

was to be accepted, then a limit for the amount of damages

should be recognized. Carroll indicated that the US proposal

on liability required extensive technical legal analysis. 5

During the initial formal meeting of the COPUOS Legal

Subcommittee regarding the liability issue in June 1962, the

US delegation proposed that the UN secretary general

establish an advisory group to draft a liability treaty. The

treaty would incorporate five principles:

• Nations and international organizations, when launching

space vehicles, were internationally liable (liable for

claims no matter where the injury occurred).

• Fault need not be proven.

• Claimants were not required to file in local courts before

filing an international claim.

• Claims had to be presented in a reasonable time.

• Disputed claims would be settled by the World Court. 6

None of these principles specifically addressed Colonel

Latella’s concerns regarding a limit on the amount of damages

to be paid by governments.

While the COPUOS Legal Subcommittee’s first formal

meeting on the liability issue ended in disagreement,

international interest in space law remained high. The UN

General Assembly passed a resolution in December indicating

strong support and concern for the fact that COPUOS had not

moved forward regarding space law issues. Work continued

slowly on the liability issue during 1963. One year later, and

LIABILITY FOR DAMAGES CONVENTION

83
after it had agreed on certain outer space principles, the UN

General Assembly requested that the COPUOS Legal

Subcommittee promptly draft an international convention

regarding liability in conjunction with a convention regarding

the rescue and return of astronauts and space vehicles. 7

In March 1964, during the third session of the subcommittee, the United States introduced the first complete draft

liability treaty. This draft contained no formula for determining

compensation for damages. A working group was appointed,

as the US and Canada had proposed earlier. The working

group discussed the limitation of liability issue previously

raised by the Air Force.8

 In preparing for the Legal Subcommittee’s next meeting, the Air Force studied copies of the State

Department’s position paper and a draft convention. The

position paper recognized the need for some limit on liability

but did not recommend an amount. 9

 The Legal Subcommittee

resumed its third session in October. 10 While there was

movement toward a consensus, no agreement was reached. 11

In August 1965, H. Rowan Gaither Jr. of the State Department’s Office of the Legal Advisor, solicited Defense Department

comments on a draft position paper and an agreement on

outer space liability. Col Marshal E. Sanders of DOD’s International Security Affairs Policy Planning Division forwarded

the request to the Air Force. 12 Two weeks later Col Earl A.

Morgan, chief of the JAG’s International Law Division,

provided Colonel Sanders with the Air Force comments. The

Air Force proposed one substantive change, namely, that a

nation be enabled to unilaterally have the convention’s

provisions apply to claims against it filed by its own

nationals.13 Colonel Sanders accepted the Air Force’s proposal,

circulated the revised draft within DOD, and provided a copy

to Gaither.14

Soon thereafter, Colonel Morgan sent Sanders a memorandum stating Air Force concurrence on the recirculated draft

position paper subject to two significant changes. The first

objected to the term unlawful activities because it might

stimulate discussion “which could result in restriction of US

activities in outer space,” especially Department of Defense

research and development programs. The Air Force recognized

the importance of avoiding this language. The second

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

84
proposed change noted the Air Force’s objection to the

principle of “uniformity of result.”* The Air Force urged DOD

not “to participate in the settlement or payment of any claims

based on this concept.” Further, Colonel Morgan proposed six

changes to the draft agreement. His suggested changes

included provisions to clarify certain vague terms or concepts

and a provision that courts of a third party nation where

damage occurred could adjudicate the claim.

Morgan’s changes represented the joint views of the Air Force

JAG and general counsel.15 Colonel Sanders immediately

forwarded DOD’s comments to Gaither at State. The DOD

comments retained all of the Air Force proposed changes to the

position paper and four of the Air Force’s six propose d changes to

the agreement. (The two Air Force proposed changes to the

agreement that were not included were essentially

nonsubstantive.)16 When the Air Force later tried to correct

language in the DOD memorandum forwarded to State, Colonel

Sanders informed the Air Force that “there was some question

as to whether or not State was prepared to receive the further

comments from DOD on the draft agreement as the document

had been fully staffed and agreed upon last year.” 17

A meeting to determine, among other things, the extent to

which State was willing to consider DOD’s comments was held

in early September 1965 in the State Department’s Office of

the Legal Advisor. Gaither, Leonard Meeker (State’s legal

advisor), Walter Sohier and Paul Dembling (the general couns el

and deputy general counsel of the National Aeronautics and

Space Administration [NASA], respectively), Colonel Sanders

(representing DOD), Alfred P. Rubin (Air Force general

counsel’s office), and Lt Col Walter D. Reed (Air Force JAG

office) attended the meeting. Most of the Air Force proposed

changes to the position paper and the agreement were

adopted. The Air Force concern for how damages were to be

determined—the concept of uniformity of result in settling

claims—was discussed but left unresolved. The Defense

Department proposed applying the law of the nation where the

* Uniformity of result meant that, for like injuries, individuals from nations with

different standards of living would be compensated equally based on their relative

standard of living.

LIABILITY FOR DAMAGES CONVENTION

85
damage or injury occurred. Meeker indicated that State was

uncommitted regarding uniformity of result. Also discussed at

this meeting was the definition of the word procures as used in

the proposed agreement. DOD’s representatives proposed a

restrictive interpretation for the term while State and NASA

favored a looser view. The Air Force desired more restrictive

language to reduce potential US liability. 18

In mid-September Carroll and Colonel Reed, in conjunction

with Walter Wilson, a member of the Air Force general

counsel’s office, reviewed a new State Department request to

coordinate immediately on a minor addition to the policy

position. The Air Force interposed no objection. 19 Colonel

Sanders coordinated the revised position paper and draft

agreement within DOD regarding the proposed liability

agreement. Comments were requested for the next day. 20

Responding on behalf of the Air Force, Carroll restated the Air

Force concern over the ambiguity of procures that it had

raised during the earlier meeting with the State Department.

Carroll feared that that term might be interpreted to make the

United States liable for damages from launches of missiles

purchased from American sources.21 Subsequently, Colonel

Sanders informed State that

the Air Force has expressed some concern, which Al Rubin and I

share, over the ambiguous concept of “procures” as used in the

definition of “launching state.” While we are willing to accede to Mr.

Meeker’s and Mr. Sohier’s desire for the retention of the loose

formulation of this concept, we would have preferred a more precise

definition of the term “procures” than is given . . . Under the proposed

explanation of the term, the United States could be held responsible

where the launch vehicle was sold or furnished by us under economic

aid, scientific assistance, or other programs, but in which we did not

have any direct or indirect interest, give any direct assistance, or

participate in the actual launch.22

The State Department, however, did not adopt the Air Force’s

proposed change at that time (see below). Typically the Air

Force faced short deadlines in the process of reviewing and

commenting on State proposals relating to the liability

convention.

COPUOS met during the summer of 1966, but dealt almost

exclusively with the Outer Space (or Principles) Treaty. 23 Even

while actively involved in the COPUOS discussions regarding

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

86
the Principles Treaty, the United States still continued to

refine its position regarding the liability issue. After talks with

Great Britain, Belgium, Australia, and Canada, the US outer

space delegation suggested revising the draft US convention

regarding liability. As the US revision was reported to

COPUOS, the United States agreed to join Belgium in

introducing a new jointly sponsored draft convention at the

next COPUOS session.24

Herbert Reis of State’s Office of the Legal Advisor and a

member of the UN delegation advised DOD regarding the

language in a new, draft liability agreement proposed by the

US in February 1967.25 Interestingly and ironically, given the

Air Force’s earlier opposition to the use of the word procures,

the term was deleted from the text of the proposed revised

agreement because Belgium “has consistently opposed” it as

placing too broad a liability on “any party which launches or

procures a space launching.” (Emphasis in the original.) In

effect, based on the very same logic, Belgium, by changing the

US position on their issue, had achieved what the Air Force

had tried but failed to do.

In March 1967, Charles Leonard Egan, assistant general

counsel of the Air Force, provided preliminary Air Force

responses to additional coordination regarding the proposed

liability convention. He noted that the short time suspense for

comments did not permit a full review of the revised

convention.26 Two weeks later, Reis again urgently requested

comments on a revised Article II regarding the liability of a

“launching state.”27 At a meeting that month, Defense and Air

Force attorneys agreed to accept Article II, subject to certain

amendments. These amendments sought to preclude the

United States from being liable to those who had assumed the

risk by being involved in the launchings or were proximate to

the launching site so as to observe the launch. 28

Subsequently, State’s Meeker contacted the Belgian

delegate to the UN, suggesting that Belgium and the United

States introduce a joint convention. The text of the proposed

jointly sponsored convention included the new US language to

replace the word procures, as well as the DOD proposed

amendment to Article II. 29 The Air Force was provided a copy

of Meeker’s letter and was asked for its comments; it had

LIABILITY FOR DAMAGES CONVENTION

87
none.30 That May, Reis’s memorandum regarding the progres s

at the UN and a draft US position paper was circulated

within DOD for comment by the services. Representatives of

the services and various DOD agencies met in the office of

Colonel Sanders to discuss the position paper. Colonel

Overbey, Colonel Sanders’s replacement, provided the DOD

response to Reis. The response noted that the State Department position paper “ably represent[ed] Defense views and

interests.” Colonel Overbey added that while it agreed that

the liability treaty should be the “first order of business” in

Geneva, DOD did not want to see the US lose any leverage

in obtaining the resolution of its proposals for the assistan ce

and return of astronauts. He stressed this point as a matter

of concern since launching nations were interested in taking

care of their astronauts while nonlaunching nations were

more interested in the liability issue. 31 Progress was made in

1967 by the COPUOS Legal Subcommittee regarding the

liability convention. In January 1968 the UN General

Assembly called on COPUOS to urgently complete its work on

the liability convention.32 In May 1968, the final US liability

convention position paper—to be presented at the COPUOS

Legal Subcommittee during its meetings between 3 June and

27 June—was circulated in the Air Force for comment.

33

Almost a year later, in March 1969, Harry H. Almond Jr.,

DOD’s assistant general counsel for international affairs,

wrote to Reis (State’s legal advisor) regarding proposed

instructions for the US delegates to the consultations on outer

space liability to be held from 9 June to 4 July. 34 In May 1969,

while preparing for these consultations, Maj Lawrence J.

McCarthy, Air Force Plans and Policy Branch (DCS/P&O),

solicited comments from the Air Force general counsel. The

latter referred Major McCarthy to its June 1968 comments. 35

He reviewed the proposed instructions for the delegates and

advised his JCS contact that the instructions had taken into

account “almost all areas of Air Force interest.” Additionally,

he recommended inserting a statement to the effect that the

United States opposed any definition of “outer space.” Major

McCarthy opposed defining the term space objects so as to

preclude any indirect definition of outer space. Such definitions,

he reasoned, might handicap Air Force research and developAIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

88
ment activities in space.36 These Air Force comments were

then coordinated through JCS and submitted as their formal

position to Colonel Butler in OSD/ISA. 37 Responding to State,

Almond noted that DOD considered the terms space objects

and outer space to be “sensitive.”38

In a memorandum regarding the developments during the

first week of the Eighth Session of the COPUOS Legal

Subcommittee meetings on the liability convention, Almond

described various proposals being discussed. He especially

noted that the items of primary interest to DOD, the definitiona l

issues, were not raised other than in passing. 39 Moreover, in

his report regarding the Eighth Session, Stephen M. Boyd,

State Department Office of the Legal Adviser and UN delegate,

noted that the session did not discuss either of the definitional

issues—procures and outer space—which were of interest to

the Air Force.40

In March 1970, Reis asked Almond and Colonel Butler for

comments regarding the instructions to be given to the US

participants for the April consultations on the liability

convention. The instructions made no reference to the earlier

concerns raised by the Air Force. 41 Major McCarthy circulated

the draft instructions within the Air Force 42 and received only

minor emendations to the instructions.43 Reis circulated

revised instructions for the consultations including the

proposed minor changes sought by the Air Force. However,

none of the concerns expressed earlier by the Air Force were

raised at the June–July 1970 Geneva Conference on the Outer

Space Liability Convention.44

On 29 March 1972 the United States signed the Convention

on International Liability for Damage Caused by Space

Objects. The Senate advised ratification on 6 October 1972

and the president signed the ratified convention on 18 May

1973. These actions culminated the more than 10 years of

negotiations within the United States government as well as at

the United Nations.

Notes

1. Will H. Carroll, “The Role of the Air Force JAG in the Early

Development of the Law of Outer Space,” unpublished, n.d., 7. This study is

in possession of the author.

LIABILITY FOR DAMAGES CONVENTION

89
2. Carl Q. Christol, The Modern International Law of Outer Space (New

York: Pergamon Press, 1982), 60.

3. Marven L. Whipple, “Atlantic Missile Range/Eastern Test Range Index

of Missile Launchings, 1950–1974,”

4. Ibid.

5. Will Carroll and Col John J. Latella (AFJAL) to Lt Col John L. Sutton

(AFXPD-PY), memorandum, subject: Liability for Space Vehicle Accidents,

21 May 1962.

6. Christol, 61–62.

7. Ibid., 62–63.

8. Ibid., 66; and USUN to Department of State, “Outer Space Liability

Convention—Applicable Law—How We Got To Where We Are,” Department

of State Airgram, 1 April 1971.

9. US Delegation, United Nations Committee on the Peaceful Uses of

Outer Space Legal Subcommittee, Sess. III (Resumed), 5 October 1964; and

Liability for Damage Caused by the Launching of Objects into Outer Space,

position paper, 18 September 1964.

10. Christol (68) refers to the 5 October 1964 meeting as the fifth sessio n.

11. Christol, 68–69.

12. Col Marshall E. Sanders to Will Carroll (AFJAL) et al., memorandum

with attached draft position paper, subject: Outer Space Liability

Agreement, 5 August 1965.

13. Col Earl A. Morgan (AFJAL) to Col Sanders, memorandum, subject:

Outer Space Liability Agreement, 19 August 1965.

14. Col Sanders to H. Rowan Gaither (DOS), draft memorandum with

attached DOD Staff Level Comments, subject: Outer Space Liability

Agreement, 23 August 1965.

15. Morgan to Sanders, memorandum, subject: Outer Space Liability

Agreement, 26 August 1965.

16. Sanders to Gaither, memorandum with attached DOD Staff Level

Comments, subject: Outer Space Liability Agreement, 27 August 1965.

17. Lt Col Walter D. Reed (AFJALB) to Charles Kent (SAFGCI), memorandum, subject: Air Force Comments on Draft Liability Agreement, 7

September 1965.

18. Reed, memorandum for the record, subject: Outer Space Liability

Agreement, n.d.

19. Walter Wilson (SAFGCI), memorandum for the record with attached

notes of Col Sanders indicating clearance called to Department of State,

subject: Outer Space, 10 September 1965.

20. Sanders to Reed et al., memorandum, subject: Revised Position

Paper and Draft Agreement Liability for Damage Caused by Launching of

Objects into Outer Space, 13 Sepember 1965.

21. Carroll to Sanders, memorandum, subject: Outer Space Liability

Agreement, 14 September 1965.

22. Sanders to Gaither, memorandum, subject: Outer Space Liability

Agreement, 16 September 1965.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

90
23. Christol, 70.

24. Herbert K. Reis (L/UNA) to Dwayne Anderson (OSD/ISA) et al.,

memorandum, subject: Outer Space Liability Convention, 20 February

1967.

25. Ibid.

26. Leonard Egan (SAFGC) to Anderson, memorandum, subject: Outer

Space Liability Convention, 3 March 1967.

27. Reis to Sanders et al., memorandum, subject: Space Liability

Convention-Revised Article II, 17 March 1967.

28. Jerome Silber (OSD/GCI) to Egan, et al., memorandum, subject:

Space Liability Convention-Revised Article II, 23 March 1967; and Silber to

Reis, memorandum, subject: Space Liability Convention-Revised Article II,

24 March 1967.

29. Leonard C. Meeker (DOS L/A) to Professor Max Litvine, Belgium

Mission to UN, 27 March 1967.

30. Silber to Egan et al., memorandum with handwritten note from

Egan, subject: Space Liability Convention-Revised Article II, 31 March 1967.

31. Col George D. Overbey to Reis, 11 May 1967.

32. Christol, 72.

33. Coordination Sheet SAFGC # R-357-S with attached final position

paper, subject: Liability for Damage from Space Activities, 28 May 1968.

34. Harry H. Almond Jr. (OSD/GCI) to Reis, memorandum, subject:

Outer Space Consultations-Proposed Instructions for the United States

Delegate in Geneva, 10 March 1969.

35. Handwritten note on copy of position paper (Second Draft), Liability

Convention, n.d.

36. Maj Lawrence J. McCarthy (AFXOO) to special assistant for arms

control JCS, Attn: Lt Col John Granger, memorandum, subject: Draft

Department of State Position Paper on a Liability Convention (U), n.d.

37. Granger to Col Butler (OSD/ISA), memorandum, subject: Position

Paper on Liability Convention, 23 May 1969.

38. Almond to Stephen M. Boyd (DOS L/UNA), memorandum with

attachment (see note 33), subject: United States Position Paper on the

Liability Convention, 26 May 1969.

39. Almond, memorandum for the record, subject: Eighth Session of the

Legal Subcommittee Devoted to a Proposed Space Liability Convention-First

Week of Session, 19 June 1969.

40. Boyd, “Report of the United States Delegation to the Eighth Session

of the Legal Subcommittee of the United Nations Committee on the Peaceful

Uses of Outer Space,” 18 July 1969.

41. Reis to Col Butler, Almond, et al., memorandum with attached draft,

subject: Outer Space Liability Consultations, 5 March 1970.

42. Ibid., handwritten comments; and Kim Seneker (SAFGC) to Lt Col

McCarthy (AFXPD), memorandum, subject: 5 March 1970 draft US Position

for the Outer Space Liability Consultations, n.d.

LIABILITY FOR DAMAGES CONVENTION

91
43. Reis to Anderson, Almond, et al., memorandum, subject: Outer

Space Liability Convention Consultations, 23 March 1970.

44. Almond to Anderson et al., memorandum, subject: Outer Space

Liability Convention-Geneva Conference, June–July 1970, 13 July 1970.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

92
Epilogue

The Air Force encouraged the ad hoc approach to the writing

of space law. This approach has been the route that the

development of that law has generally taken. Most international

law conventions relating to outer space that the various

nation-states have passed and accepted have simply codified

existing customs and practices among nations. This trend has

allowed the unfettered development of technology to drive these

customs and practices just as the Air Force desired. Project

West Ford is a case in point. Because of the technology it

incorporated, the Air Force had a direct impact on the

development of environmental provisions that eventually

became part of international outer space law.

It is highly unlikely that any delimitation or demarcation

between airspace and outer space will be internationally

recognized until a particular practice or technological device

makes such a definition imperative. In the interim, Eisenhowe r’s

“open skies” policy providing for the free passage of vehicles in

outer space, wherever that is, has become the internationally

accepted custom (law). The Soviets, with the launch of Sputnik

I and II, firmly established this principle of outer space law,

and the United States with its subsequent overflights in outer

space further solidified the principle. The extensive number of

overflights occurring each day have made the principle a

commonly accepted custom or practice.

Initially, certain Air Force representatives viewed spy satellites

as a threat and, thus, subject to summary destruction. This

position was diametrically opposite that which the Eisenhower

administration so dearly sought to achieve. The military services

chafed under Eisenhower’s space policies in part because they

had never been fully advised nor fully comprehended how these

policies would eventually contribute to the strengthening as

opposed to the weakening of national security.

The early Air Force proponents of the ad hoc approach to

development of the law were correct. The writing o f international

conventions before the practices of nations and the advent of

relevant technology existed would have been an unnecessary

93
exercise. No evidence has surfaced that mankind or the

national security interests of the United States have been

disserved by the ad hoc approach. Further, because of the ad

hoc approach, space related technology has flourished under

the present legal regime and, when appropriate, has been

transferred to the civilian sector.

This may not have occurred if certain officials of the Air Force

had not stuck by their beliefs. The Air Force individuals who

attended the “skull sessions” of the Air Coordinating Committee

were particularly effective in preserving the ad hoc approach.

Even when under pressure from the others to capitulate,

particularly given the growing international pressure at the

United Nations for the codification of space law, Air Force

officials stood their ground. By remaining firm, the Air Force

kept the Air Coordinating Committee, and accordingly the

United States, in accord with the Air Force position supporting

the ad hoc approach to the development of the law.

The existence of the ACC provided a forum within which

divergent views from varying levels of authority (in particular

midlevel officials) from many government agencies could be

brought to bear on an issue. At the ACC, representatives of

agencies below today’s policy decision-making level felt free to

speak their minds and to advocate, argue, and discuss current

issues. In essence, the ACC provided a forum from which longterm analysis and planning emerged from the “adversarying” of

the current issues among agencies and departments. Interdepartmental working groups and coordination typified by the

ACC are more rarely used today. Instead coordination, in

general, has degenerated to passing paper.

After the demise of the ACC, coordination of various forms of

paper (for example, position papers, memoranda, briefing papers,

and other staff documents) became the predominant vehicle to

obtain interdepartmental input regarding the proposed US

position for the various outer space treaties. By replacing

face-to-face discussions and the type of dialogue typical of ACC

meetings with paper coordination, effective and efficient crystallization of concepts, plans, doctrine, or policy is lost. Given the

present irregular use of such interdepartmental adversarying of

current issues and the conversion of previously mid- and

upper-level career positions to policy positions (that is, politically

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

94
appointed positions) that has taken place over the past 30

years, the by-product of such adversarying, has been negatively affected. That is not to say that those with political agend as

should not have input, but only that the political input should

be layered upon or be part of the metamorphosis of an analysis

that was not initially driven by political concerns. Face-to-face,

in-depth brainstorming by those without a political agenda must

not become a lost art in government. The intra- and interdepartmental coordination of the liability treaty, described in chapter 6

above, typified the sterile paper coordination process particular ly

when compared to the discussions at the ACC.

While the ad hoc approach generally has allowed the

unfettered development of technology to drive what would

become accepted practices and customs, two major exceptions

to this approach were the bilateral Anti-Ballistic Missile (ABM)

and Anti-Satellite (ASAT) Treaties. ASAT truncated development

of weapons lethal to spy satellites while the ABM treaty curtailed

the development of antimissile technology. Clearly, certain policy

considerations underpinning the efforts to achieve ASAT were

consistent with Eisenhower’s strong desire to have “open

skies”—the freedom of passage for spy satellites in outer space—

so as to preclude a nuclear Pearl Harbor. More recently, development of technology in support of missile defense initiatives has

tested the limits of the ABM Treaty.

As the Air Force considers the “operationalization” of outer

space as analyzed by Gen Thomas S. Moorman Jr.’s Blue Ribbon

Panel and/or the development, implementation, and placement of

force projection weapons (beyond force-enhancing “eyes and ears”

systems) in outer space, it must revisit the policy issues

underlying the Eisenhower administration’s efforts to establish

the free passage of intelligence-gathering devices in outer space.

Reconsidering these issues is critical given that the unrestricted

movement of intelligence-gathering devices in outer space exists

as a result of commonly accepted custom and practice. Such

accepted custom and practice could change rather quickly

should nation-states determine that such free passage is

inimical to their national interests. Military history has taught us

a Newtonian symmetry regarding military weapons/measures;

that is, for every weapon/measure, there will be at least an

attempted countermeasure or system.

EPILOGUE

95
The positioning of force projection weapons in outer space

could result in the loss of our force-enhancing eyes and ears in

outer space and recession of the freedom of passage in outer

space as a principle of international legal custom and practice.

Other nation-states might target our force enhancing systems

because they might be unable or refuse to differentiate between

our force projection and force enhancement assets. Or they

might even view the force enhancing assets as hybrids. The

proliferation of expensive civilian assets further complicates the

issue. These civilian satellites also would likely be at risk since

other nations may be unable or unwilling to differentiate

between military and nonmilitary assets. However, if analysis

determines that there is a reasonable, probable, and predicable

threat to this nation’s national interest or terrestrial humankind’s

existence from an extraterrestrial force (meteor or alien driven),

then there are indeed strong considerations supporting the

development of and positioning of such force-projection weapons

in outer space to protect and defend life on this planet. However,

if the development and positioning of such force projection

weapon systems is intended for the sole purpose of controlling

terrestrial nation-states or terrestrial humankind, the answer is

far more problematical.

As the United States has already learned with respect to its

global positioning assets, once turned over for use to the earth’s

body politic, such assets are difficult to retrieve for national

security purposes. On the other hand, our current technical

capabilities make unlikely the development and launch of any

unforeseen hostile offensive weapons into outer space by

another earth-bound nation-state. Assuming such, should the

US initiate an offensive arms race in outer space that would

likely place its eyes and ears at risk? Currently, probably not.

Given advancement and higher standards of living associated

with the use of outer space now afforded all of terrestrial

humankind, all of which benefits are premised on the principle

of free passage, outer space is perhaps presently best left

preserved as all of terrestrial humankind’s asset. Finally, by

internationalizing the benefits derived from outer space,

perhaps the assets generating such benefits can be made

inviolate.

AIR FORCE ROLE IN DEVELOPING OUTER SPACE LAW

96
Appendix A

Air Staff Reaction to

Project RAND Report Dated 28 October 1957*

The United States should not take hasty action to commit

itself to a generalization of space control which in the future

could limit progress in development and technological research for space travel.

There should be an expansion of the military role in evaluat -

ing advantages and disadvantages which will affect policy,

planning, and coordination required for guiding the efforts of

future space activities in favorable directions.

Terminology in naming United States satellites should be considered if the possibility of premature ICAO consideration is to

be minimized.

Military implication of outer space activities on United States

national security should be outlined.

An exhaustive study should be conducted on the legal as -

pects, with assignment of responsibility to an appropriate Air

Staff agency for such a study.

Study groups should examine space era aspects such as (A)

The offensive use of space missiles or satellites; (B) Force

structure and strategic concepts; (C) The acquisition of effec -

tive deterrence; and (D) Establishment of appropriate international agreements.

The United States should show its readiness to negotiate and

conclude agreements on specific projects for international cooperation in uses of outer space, such as (A) continuation of

the IGY, (B) further exchange of satellite tracking data, and (C)

an effort to launch into space a scientific rocket or satellite

designed and perhaps financed under international auspices.

(Details of such agreements and the sequence in which they

should be proposed or concluded must depend on developing

* Staff Study, Air Doctrine Branch, Air Policy Division, Directorate of Plans, Deputy

Chief of Staff for Plans and Programs, 8 October 1958, 8–9. Copy on file at HQ USAF,

Pentagon Support Office, Office of Air Force History.

99
space technology, the current political-strategic situation, and

other factors.)

United States policy on research and development on outer

space should not at this point be deferred or delayed pending

the elaboration of an international agreement on the legal

status of outer space or a United States policy on legal as -

pects.

Space programs should be formulated in scope and in inten -

sity of effort as dictated by (a) military needs and require -

ments, (b) scientific needs, and (c) commercial needs, where

they can be foreseen. It is unwise to insist that military enduses must be foreseen at the present time in order ultimately

to achieve useful military applications.

The United States should publicly welcome and encourage the

general idea of international cooperation in scientific and com -

mercial phases of its own space research and development,

and should refrain from stressing any predominantly military

purposes of space exploration, except as technical advance

jeopardizes free world survival.

100
Appendix B

Conclusions of the

Air Doctrine Branch Study

8 October 1958*

The United States should not at this time conclude general

agreements on the ownership of outer space, the legal status

of outer space, or the sovereignty of outer space.

Pending acquisition of more precise knowledge of the opera -

tion and control of space vehicles and the various uses to

which outer space may be put (e.g., U.S. defense interest,

science, and commerce), the United States should not claim

sovereignty over outer space above its territory, including ter -

ritorial waters, and it should not recognize corresponding

claims made by or on behalf of other states.

Similarly, the United States should not claim that outer space

is free for the passage of all space vehicles. (Freedom of pas -

sage should depend on the nature of the vehicle, its inferred

or intended purpose, its technical characteristics, and other

factors. It is not necessary to have or to develop a uniform rule

for all activities occurring in a given place.)

If pressed for agreement on the ‘status’ of outer space or the

‘boundaries’ between air space and outer space, the United

States should at this time direct the negotiation or discussion

away from such general legalistic questions and toward spe -

cific uses, specific functions, and specific characteristics of

spacecraft.

Although political-diplomatic negotiations may result, eventually, in placing some kinds of limitations on uses of space, the

uncertainties of reaching such agreements and then the uncertainty of their enforcement make it impossible to base tech -

nical plans and programs of space control on the anticipated

resolutions of these issues.

* Staff Study, Air Doctrine Branch, Air Policy Division, Directorate of Plans, Deputy

Chief of Staff for Plans and Programs, 8 October 1958, 9–10. Copy on file at HQ USAF,

Pentagon Support Office, Office of Air Force History.

103
The United States should show its readiness to negotiate and

conclude agreements on specific projects for international cooperation in uses of outer space, such as (a) continuation of

the IGY, (b) further exchange of satellite tracking data, and (c)

an effort to launch into space a scientific rocket or satellite

designed and perhaps financed under international auspices.

(Details of such agreements and the sequence in which they

should be proposed or concluded must depend on developing

space technology, the current political-strategic situation, and

other factors.)

United States policy on research and development on outer

space should not at this point be deferred or delayed pending

the elaboration of an international agreement on legal status

of outer space or a United States policy on legal aspects.

Space programs should not be formulated in scope and in

intensity of effort as dictated by (a) military needs and require -

ments, (b) scientific needs, and (c) commercial needs, where

they can be foreseen. It is unwise to insist that military enduses must be foreseen at the present time in order ultimately

to achieve useful military applications.

The United States should publicly welcome and encourage the

general idea of international cooperation in scientific and com -

mercial uses of space while reserving its freedom to accept,

reject, or modify any particular form of such cooperation.

The United States should give maximum appropriate public -

ity, directly and indirectly, to the scientific and commercial

phases of its own space research and development, and

should refrain from stressing any predominantly military pur -

poses of space exploration, except as technical advance jeop -

ardizes free world survival.

104
Appendix C

Excerpts from

The Operations Coordinating Board’s

“Operations Plan for Outer Space”

18 March 1959*

A. Objectives

1. Develop and exploit U.S. outer space capabilities as

needed to achieve scientific, military, and political

purposes, and to establish the U.S. as a recognized

leader in this field.

2. As consistent with U.S. security, achieve international cooperation in the uses of and activities related

to outer space for peaceful purposes and with selected

allies for military purposes.

3. As consistent with U.S. security, achieve suitable

international agreements relating to the uses of outer

space for peaceful purposes that will assure orderly

development and regulation of national and international outer space programs.

4. Utilize the potential of outer space to assist in pro -

grams of scientific cooperation.

F. International Considerations

19. Establishment of an International Framework for

Outer Space Programs

 a. International Outer Space Law. In order to

be prepared to meet proposals which may be made by

other countries and to deal with other practical prob -

lems as they may arise, the U.S. should develop a

catalogue of the possible legal issues involved in outer

space programs and should analyze specific cases

with a view to initiating, where it may be necessary,

the formulation of definite U.S. legal positions.

* Draft Operations Plan for Outer Space dated 18 March 1959, approved by Opera -

tions Coordinating Board, 25 March 1959, Bromley Smith, Executive Director.

107
Appendix D

Conclusions of Colonel Martin Menter’s Thesis

“Astronautical Law”

May 1959*

Recognition in air law of sovereignty of a nation in its superjacent

airspace was not a determination of the upward extent of a nation’s

sovereignty.

While there is an ultimate limit to the upward extent of sovereignty, no

presently recommended limits have been accepted or matured into

international law.

Neither the finite limits of airspace nor of sovereignty above the earth

present justiciable issues, but are matters for settlement by

international agreement.

From the point upward that sovereignty ends (whether this is

eventually determined), outer space by the natural law should be

recognized as a ‘res communis omnium’ (thing common to all) .

Activities in space, rather than the question of sovereignty in outer

space, give rise to security problems and will determine a subjacent

sovereign’s tolerance of a particular satellite.

The international community appears to have accepted the orbiting

around the world of space vehicles not equipped to inflict injury or

unduly interfere with the normal activities of a subjacent state.

International recognition of and international agreements on activities

in space will give rise to the further evolvement of rules of

astronautical law.

The acquisition of sufficient necessary scientific data concerning

astronautical activity is normally a prerequisite to the preparation of a

meaningful international rule of law to govern such activity.

The participation of scientists of different nations in common space

projects will result in a more rapid advance in the technology of space

exploration, the acquisition of scientific data, and in the development

of law arising out of international agreements premised on the

scientific data obtained.

While rules may be not yet formulated to resolve many legal problems

in astronautics, there are areas where existing data are sufficient to

formulate international agreements on space activities.

* Thesis, Col Martin Menter, “Astronautical Law,” Industrial College of the Armed

Forces, May 1959, 67–69, in possession of General Menter (ret).

111
As (1) the nature of sovereignty is such that a nation is subject to

national limitation only if it joins therein, (2) almost all nations are

involved in the orbit of satellites, and (3) international cooperation is

essential to the peaceful use of outer space, the United Nations is the

appropriate agency to seek concurrence of the international

community toward meaningful agreements on the peaceful use of

outer space.

Retention of a strong military posture, to include manned military

space vehicles, is not inconsistent with the concept of the peaceful use

of outer space.

As a result, Colonel Menter recommended that:

The United Nations undertake to determine the areas where

international agreements on space activities are feasible and to secure

such agreements among the UN members. The following areas are

recommended as appropriate for current consideration for

international agreement:

To cooperate with the United Nations and member nations for the

peaceful exploration of outer space.

To disclaim rights of sovereignty to celestial natural masses with all

rights of sovereignty to be exercised as may be determined by the

General Assembly under the UN charter.

To refer all international disputes arising out of the use of outer space,

that are not otherwise resolved by mutual agreement of the parties,

thereto, to the International Courts of Justice, with the decision of

such court to be binding; and dispute deemed by such court as

nonjusticable to be referred by the Court to the Hague Tribunal, or

other UN arbitration panel, with the decision of the Hague Court or

other UN panel to be final, except as to such appeal that may be

granted to the International Court of Justice.

The creation of a permanent standing UN committee to succeed the

current United Nations Ad Hoc Committee on the Peaceful Use of Outer

Space when such committee completes its mission and submits its report

to the 14th session of the General Assembly. The permanent committee

to be charged with the study of space problems on a continuing basis

with the view of further assuring peaceful cooperation of the family of

nations in outer space activities; further, to evaluate proposals including

those for formulation of international rules of astronautical law received

from the UNASTRA. The committee to circulate to member nations

proposals for agreement on astronautical activities, including proposals

for astronautical law. International conferences on astronautical law shall

be recommended by the committee to the General Assembly when the

112
scientific data and evaluation of proposals received are believed to

warrant such conferences.

For indemnification for damages sustained from satellite activities.

Adopt and announce the position that it has no desire to claim

sovereignty over celestial and land bodies to the detriment of any

nation, and within the United Nations invites all member nations to

jointly (A) disclaim rights of sovereignty over celestial land bodies and

(B) agree that sovereignty over celestial land bodies will be exercised as

the UN General Assembly may determine.

Should not enter into any agreement on the use of outer space which

may impair its military security.

Undertake a review of existing law to determine appropriate

amendments necessary to extend such laws to U. S. personnel,

property, and activities in outer space beyond the present jurisdiction

of the United States.

113
Appendix E
116
“Ten Precepts” General Albert M. Kuhfeld

January 1962*

Formulation of international law must take into consideration

the unique physical nature of the aerospace medium, i.e., air

and space with no boundary between them.

The Air Force must assume the initiative and leadership on

aerospace matters within the Department of Defense.

The Air Force evaluation of boundary formulae should be in

terms of their impact on Air Force roles and missions.

International agreements which prohibit overflight of State by

aircraft without permission should only apply within the air -

space.

Outer space should be declared free for use by all and not

subject to national appropriation.

The right of self-defense must also be recognized but must be

suitably defined in terms of reasonable measures taken in

good faith to protect against a present physical danger.

The term “peaceful use” is not incompatible with any and all

military uses.

An agreement on registration of launches and orbits should be

entered into.

Property rights of launch States in their space vehicles must

be recognized.

The Moon and other celestial bodies are not subject to na -

tional appropriation.

* Attachment to Maj Gen Albert M. Kuhfeld, Air Force Judge Advocate General, to

Maj Gen Cecil H. Childre, Asst Deputy Chief of Staff, Plans & Programs, memoran -

dum, Subj: Aerospace Law, 19 January 1962.

117
Glossary of Terms

ABA American Bar Association

ACC Air Coordinating Committee

AF/RDC Air Force assistant deputy chief of staff for

 research and technology

ASIL American Society of International Law

AU Air University

COPUOS Committee on Peaceful Uses of Outer Space

COSPAR Committee on Space Research

DOS Department of State

IAU International Astronomical Union

ICAF Industrial College of the Armed Forces

ICAO International Civil Aviation Organization

ICSU International Council of Scientific Unions

IGY International Geophysical Year

JAG judge advocate general

JCS Joint Chiefs of Staff

MIT Massachusetts Institute of Technology

NASA National Aeronautics and Space Administration

NASC National Aeronautics and Space Council

NSC National Security Council

OCB Operations Coordinating Board

OSD Office of the Secretary of Defense

SSB Space Science Board

UN United Nations

USSR Union of Soviet Socialist Republics

119

Glossary of Key People

BAKER, James G.

Harvard astronomer and lens designer. Leading designer of high

acuity aerial reconnaissance lenses during World War II. Headed

Air Force intelligence systems panel and TCP committee mem -

ber urging development of U-2. Designed lenses for U-2.

BECKER, Loftus

State Department legal advisor who recommended that the US

president publish a proclamation recognizing that reconnaissance satellites were in accord with international law so long

as they did not interfere with terrestrial activities.

BISSELL, Richard M., Jr.

Head of all Central Intelligence Agency (CIA) reconnaissance

programs from 1954 to 1962. Former MIT economics professor

and Marshall Plan official. Became Director of Central Intelli -

gence (DCI) Allen Dulles’ special assistant for planning and

coordination in January 1954 and received responsibilities for

the new U-2 project late 1954. Later headed first photosatellite

project and oversaw development of Oxcart. In 1959 became

deputy director of central intelligence (DDCI) for plans while

maintaining reconnaissance projects portfolio. Resigned from

CIA February 1962.

CARROLL, Will H.

Long-term, nearly 40 years, civilian attorney with Air Force

JAG who specialized in international law and was present in

LeMay’s office shortly after Sputnik when Air Force officers

sought direction as to an Air Force position. Worked with

many of the JAG officers and was himself involved with outer

space law issues for Air Force.

COOPER, John Cobb

McGill University professor of international air and space law

and member of Princeton University Institute for Advanced

121
Study. US delegate to and “father” of the 1944 Chicago inter -

national law convention on airspace law, prodigious author of

publications regarding outer space law, and strong proponent

of international treaty establishing freedom of passage in

outer space.

DeSAUSSURE, Hamilton

Major, USAF. JAG officer and member of Cooper’s first gradu -

ating class at McGill’s Institute for International Air and Space

Law. Author of first substantive Air Force response to Cooper’s

proposed international outer space law convention.

DONOVAN, Allen F.

Aeronautical engineer who helped design P-40 fighter for Curtis sWright Corporation. One of the founders of Cornell Aeronauti -

cal Laboratory. Beacon Hill study group member.

DULLES, Allen W.

DCI from 1953 to 1961. Initially reluctant to support CIA

involvement in aerial reconnaissance, which he viewed as the

military’s responsibility but became strong supporter of U-2

program when he learned how much intelligence was being

obtained. Dulles’ interests were mainly human intelligence

(HUMINT) and therefore left much of the management of re -

connaissance programs to DDCIs Cabell and Bissell.

DULLES, John Foster

Eisenhower administration secretary of state, 1953–59. Argued

that passage of Project Genetrix balloons over national territory

had not violated international law because the altitude in which

they flew was arguably not airspace but outer space .

FOREMAN, Benjamin

Assistant general counsel for international affairs, Department

of Defense (DOD). Active DOD attorney in outer space law

issues and in particular the Liability Convention.

GARDNER, Trevor

World War II Manhattan project official and later head of Gen -

eral Tire and Rubber before starting his own research and

122
development firm, Hycon Company, building aerial cameras.

Initiallly special assistant to secretary of the air force and later

assistant secretary for research and development during the

Eisenhower administration’s first term. Shared Eisenhower’s

concern for surprise attack helping lead to creation of Techno -

logical Capabilites Panel (TCP).

HAGAN, Richard C.

Brigadier general, Air Force Reserve. JAG officer who played

instrumental role in development of Air Force position on

outer space law. Personally bore cost of initial outer space law

symposium.

HALEY, Andrew J.

Director and general counsel for American Rocket Society.

Ally of Cooper in pushing for international outer space law

convention.

HENSLEIGH, Howard E.

DOD assistant general counsel for international affairs. Active

DOD attorney in outer space law issues and in particular the

Liability Convention.

HOWARD, Daggett

Associate general counsel of the Air Force for international

civil aviation affairs and Air Force representative to Air Coordi -

nating Committee (ACC) Legal Division. As Air Force repre -

sentative was a strong and particularly effective advocate who

kept the Legal Division and the ACC in accord with the Air

Force position and as a result played a major role in preclud -

ing International Civil Aviatioin Organization (ICAO) consideration of Cooper’s proposals. Later served as the first general

counsel of the Federal Aviation Administration.

JENKS, C. Wilfred

McGill University Institute of International Air and Space Law

associate of Cooper who sought the passage of an interna -

tional outer space law convention recognizing that a nationstate’s sovereignty extended three hundred miles above the

earth’s surface.

123
KINSEY, Ronald C.

Secretary of the ACC Legal Division.

KILLIAN, James R., Jr.

MIT President. Head of TCP. Along with Edwin H. Land en -

couraged Eisenhower’s support of U-2 program. Later served

on Eisenhower’s Board of Consultants Foreign Intelligence Ac -

tivities (BCFIA), cabinet-level science advisor, chair of science

advisory board, and later chair of Foreign Intelligence Advisory

Board under President John F. Kennedy.

LAND, Edwin H.

Inventor of polarized filters and instant-film camera (Polaroid).

Head of TCP group investigating US intelligence-gathering capabilities. Supported development of high-altitude reconnaissance aircraft under civilian not military control. Also on

BCFIA.

LEGHORN, Richard S.

MIT graduate (physics). Member of US Army Air Forces in

1942 working for reconnaissance expert Col George Goddard

and later chief of reconnaissance 9th Tactical Air Force. Pro -

ponent of pre-D day, strategic intelligence. Recalled to active

duty during Korean War later serving in Eisenhower admini -

stration disarmament office headed by Harold Stassen.

LEIGH, Monroe

DOD assistant general counsel for international affairs and

opponent of Becker. Proposed presidential proclamation regarding the legality of reconnaissance satellites as failing to

adequately protect DOD space missions. Opposed the use of

the law of the sea as the analogous basis for evolving outer

space law. Active in the evaluation of proposals leading to the

eventual Liability Convention.

LINDSEY, Richard C.

Major general, USAF, and acting assistant deputy chief of staff

for operations who was thrust into the middle of Air Force

efforts to stop Cooper’s efforts.

124
LOVETT, Robert A.

World War II assistant secretary of war for air who recom -

mended creation of ACC.

MENTER, Martin

Colonel (later brigadier general), USAF JAG corps. Author of

“Astronautical Law” (1959), first major substantive Air Force

evaluation of outer space law. Coined the phrase ex facto oritur

jus as being applicable to space. “Astronatutical Law” was

perceived to be one of the first major treatises on out er space

law generally. Had “run-in” with Lt Gen Richard Montgomery

over legality of U-2 flight.

MONTGOMERY, Richard M.

Lieutentant general, USAF. Air Force assistant vice chief of

staff who resisted JAG attempts to pursue space law issues.

Initially refused General Kuhfeld’s and Colonel Menter’s re -

quest for Air Force sponsorship of space law symposiums but

later changed his position.

NORTON, Paul W.

Colonel, USAF. Director of Air Force JAG Civil Law Division

during the mid-1950s. Signed first substantive Air Force legal

position in response to Cooper’s efforts.

PERKIN, Richard S.

President Perkin-Elmer Corporation. Close friend of Baker and

served on Beacon Hill project. Helped decide which cameras to

use on U-2.

POWERS, Francis Gary

Air Force reserve officer and CIA U-2 pilot beginning 1956.

Eventually most experienced U-2 pilot with over 27 successful

missions over USSR. Pilot of Grand Slam mission initiated 1

May 1960 during which his U-2 was downed over USSR.

Traded for Soviet spymaster Rudolf Abel. Cleared of all allega -

tions of misconduct related to 1 May 1960 mission, trial, and

captivity. Lockheed test pilot and later light aircraft and heli -

copter pilot for radio and TV stations. Died in helicopter crash

1 August 1977.

125
PUTT, Donald L.

Lieutenant general, USAF. Long-term deputy chief of staff for

development. Most consistent proponent of a satellite reconnaissance program among uniformed service officers. Recommended summary destruction of Soviet reconnaissance satel -

lites if they passed over the United States.

QUARLES, Donald A.

Initially Eisenhower’s secretary of the Air Force. In November

1956 directed that no military satellite would precede a non -

military satellite into orbit. Later, as deputy secretary of de -

fense, issued the gag order precluding military officers from

talking about space. Explained the benefits to Eisenhower of

the USSR having sent first satellite into orbit since it overflew

US and other countries in outer space. Even after Sputnik

refused to allow a US military satellite to precede a nonmili -

tary satellite into outer space.

ROTHSCHILD, Louis S.

Eisenhower administration ACC chairman and undersecretary

of commerce.

SHARP, Dudley C.

Eisenhower assistant secretary of the air force for materiel

who served as Air Force representative to the ACC. Opposed

Cooper’s efforts to achieve an outer space law convention.

Opposed even the discussion of outer space law issues at the

ACC as being premature given that national security concerns

had not been fully evaluated. Sharp also proposed that the US

should seek ICAO’s adoption of this position. Later secretary

of the Air Force December 1959 to January 1961.

WHITE, Thomas D.

General, USAF. First chief of staff of the Air Force to use and

argue the services’ role as an aerospace force by articulating

the air-space continuum doctrine and therefore opposed the

setting of boundaries between air and outer space.

126
The Air Force Role in Developing

International Outer Space Law

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