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# OUTER SPACE, ANTARCTICA, AND THE UNITED NATIONS

PHILIP C. JESSUP AND HOWARD J. TAUBENFELD

## I.

Some of the current spate of writing about outer space is so highly imaginative as to discourage serious students of international organization and law from pursuing detailed studies of very real problems which now confront the UN. Antarctic possibilities are only slightly less fabulous and some of the problems there raised may be even more immediate. There are those who are troubled by the difficulty of mastering a new massive subject matter some of which is shrouded in unfamiliar scientific terminology and some of which is imprisoned in official security classifications. Actually these difficulties are no greater here than elsewhere. A study of the International Telecommunication Union (ITU) like Codding's¹ required familiarity with pulse radionavigation systems as well as voting procedures; the political and legal delegates to the recent Geneva Conference on the Law of the Sea were also required to deal with hydrography and ichthyology. The dark shadow of secret archives clouds the crystal ball for many a student of international relations who wishes to edge up on the contemporaneous scene. When charged with inadequacies, the present writers will not "take the Fifth" but will plead guilty.

Political scientists in general and inter-

national lawyers in particular did much to merit President Lasswell's chiding that the nuclear age found them unprepared. Even in the short span since his address to the American Political Science Association in 1956, technological developments have brought a number of formerly theoretical problems to the point of political discussion and decision. Such is the case with both Antarctica and with outer space. In both instances the absence of an indigenous population and the present inability to exploit what might be called natural resources serve to distinguish them from historical examples like that of Africa in the nineteenth century. In both instances, the immediate interest has been primarily that of scientific exploration but in both rapid progress in science and technology has raised political issues which are now the subject of international diplomatic consideration. In both instances it has been recognized in official quarters that international organization can play an important and perhaps a decisive role. As the Australian delegate said in the First Committee of the United Nations General Assembly in 1958: "Experience in Antarctica may suggest how difficult it may become to consider the problems of outer space impartially and on a universal plane if decision is left until states

Columbia University Press in October 1959 under the title "Controls for Outer Space and the Antarctic Precedent".

¹ Codding, *The International Telecommunication Union; an Experiment in International Cooperation*, 1952.

PHILIP C. JESSUP is Hamilton Fish Professor of International Law and Diplomacy at Columbia University, New York City. HOWARD J. TAUBENFELD is Professor of Law at Golden Gate College, School of Law, San Francisco. The authors are engaged in writing on the subject of this article a book which is scheduled for publication by the

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have established themselves permanently in the field.”² Some details may usefully be summarized at this point, first about Antarctica and second about outer space.

Antarctica is still largely an unknown continent. It is as big as the United States and Europe combined. Its population may number as many as 10,000, including transient scientists, base personnel, fishermen, and the few permanent residents who live on some of the islands which may be considered as included in the area. It contains great mountain ranges and one active volcano some 13,000 feet high. Parts of the continent are covered with an ice cap some two miles thick but there are an estimated 200,000 square miles which are ice-free. There are ice-free valleys with lakes and rivers where the temperature ranges from 30° below zero to 70° above Fahrenheit. The lowest recorded temperature is 125.3° below. The scenery is magnificent and Chilean and Argentine cruise ships have already revealed it to tourists. Geological exploration to date suggests that the mineral resources would be comparable to those of other continents. The surrounding waters teem with marine life. Eight countries (Argentina, Australia, Chile, France, New Zealand, Norway, the United Kingdom, and the Union of South Africa) have advanced claims to sovereignty in the area. These claims are expressly not recognized by the United States or by the Soviet Union, both of which, along with Belgium and Japan, participated on the continent in the friendly cooperative scientific investigations of the International Geophysical Year (IGY) which formally ended on December 31, 1958. All twelve countries continue to maintain their scientific bases in Antarctica.

In May 1958, the United States took the initiative in trying to enlist agreement on continuation of scientific cooperation without advantage or prejudice to territorial claims. Negotiations which were successfully kept private were conducted for twelve months with representatives of the other eleven states which had participated in Antarctica in the IGY. Finally on May 28, 1959, it was announced that agreement had been reached on holding an international conference on Antarctica to convene on October 15 in Washington.

Antarctica has potential value to future commercial aviation using the south polar air routes. In addition to airfields which have been built on the ice, there are possible locations for adequate runways on the mainland and on some of the adjacent islands. Strategic interests are involved including possible control of the 700 mile-wide sea passage between South America and Antarctica. For meteorological observation and tracking of satellites, the South Pole itself (where the United States is now maintaining a station) has certain unique advantages. The three-power technical report of 1958 on establishing sites for monitoring nuclear tests included eight locations in Antarctica. The interest of the area for almost every science is almost limitless. It presently offers to more people more immediate pioneering opportunities and challenges than does outer space, which is the other subject presenting new challenges to international organization.

By outer space we mean an area still unbounded and undefined in law or politics although quite describable in scientific terms. Law and politics agree there is an area above the surface of the earth over which each terrestrial state

² Document A/C.1/SR.986.

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is entitled to claim and to exercise its
sovereignty. This it customarily does,
for example, by regulating the overflight
of foreign aircraft. Prior to the develop-
ment of aircraft, there were arguments
about the height above the land to which
private ownership and state sovereignty
extend. When by 1919 aircraft had es-
tablished their roles in peace and war,
governments easily agreed that sover-
eignty extended upward over *all* the
superjacent air space. Prior to the devel-
opment of sputniks, other satellites, and
spacecraft, no one bothered to define the
upper limit of the air space, that is, the
frontier between air space and outer space.
Now that spacecraft (to use a term un-
scientifically) are in being and in orbit,
there is a voluminous literature on the
question where air space ends and where
outer space begins; these limits do not
necessarily coincide. The Legal Com-
mittee of the United Nations *Ad Hoc*
Committee, which we shall discuss later,
reached the conclusion that the determi-
nation of a precise limit does not present
"a legal problem calling for priority con-
sideration at this moment". By May
1959, eleven satellites had been placed in
orbit, and four space probes, two of
which had escaped Earth's gravity, had
been launched either by the United States
or the Soviet Union. The satellites have
already performed significant scientific
tasks; they have made possible inferences
as to the distribution of matter within
the Earth and the measurement of at-
mospheric density and of the size and
shape of the Earth, as well as allowing
estimation of the occurrence of micro-
meteorites and of ionization, tempera-
tures and cosmic rays, and radiation in

space. In at least one (Explorer III),
information has been stored up and its
transmission triggered by radio from the
Earth. Sputnik II carried a dog into
flight. Vanguard II was the first crude
meteorological satellite, and the SCORE
project of the United States demon-
strated the feasibility of Earth-to-satellite
and satellite-to-Earth direct communica-
tions and telecommunications relays.³
Discoverer II, launched on April 13, 1959,
on a polar orbit, on the other hand, was
intended to test techniques designed to
stabilize a satellite in flight so that recon-
naissance cameras could function effec-
tively and to make recovery of a payload
possible. Some missile nose cones have
been recovered intact as well, and, in
May 1959, the United States recovered
alive two monkeys sent into outer space
in a missile, indicating the probability of
engineering a safe return for human
space travelers in the not too distant
future.

While the sequence of activities in
space will be a function of many vari-
ables, including considerations of budget-
ary policy, priorities, and cost, military
strategy, and scientific curiosity, it has
been estimated that, with the adaptation
of present equipment and according to
present policies, the achievement of the
following by the United States is possi-
ble, probably by 1964:⁴

a) Orbit satellite payloads of 10,000 pounds at 300 miles altitude.

b) Orbit satellite payloads of 2,500 pounds at 22,000 miles altitude.

c) Impact 3,000 pounds on the Moon.

d) Land, intact, 1,000 pounds of instru-
ments on the Moon.

³ Rear Admiral Clark, "Programming for Space Defense," *JAG Journal*, February 1959, p. 20, 21. Dr. Lloyd Berkner sees early and revolutionary use of radio-relay satellites for long distance telephoning, *The New York Times*, May 7, 1959.

⁴ Space Handbook, p. 5. See also "Space Flight: A Look Ahead," *Astronautics*, November 1958, p. 24-28.

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e) Land, intact, more than 1,000 pounds of instruments on Venus or Mars.

f) Probe the atmosphere of Jupiter with 1,000 pounds of instruments.

It should be possible to track these experiments as well and "communications as far as Mars seems reasonably well in hand. ..."⁸

On actual timing, the United States, at least since the days when Sputnik I deflated American publicity about the "Vanguard" project, has eschewed a formal timetable. Nevertheless, the National Aeronautics and Space Agency (NASA) outlined a program to Congress in April 1959 which included:

The launching of eight satellites, two deep-space probes, and 45 to 50 sounding rockets in 1959;

The launching of six satellites, four deep-space probes, and 90 to 100 sounding rockets to heights of 4,000 miles in 1960;

The investigation through these means of the atmosphere of the Earth, Mars, and Venus, the ionosphere of the Earth, the planets, and the Sun, the types of charged particles in space, the gravitational, electrical, and magnetic fields in space, the "astronomy ... of the universe", and the general theory of relativity (through use of precise atomic clocks in two satellites);

The establishment of a system of meteorological satellites within ten years, probably including five on polar and one or more on stationary equatorial orbits to

make possible global weather forecasts (including a satellite with TV cameras in 1960 and a pattern of meteorological satellites by 1961-62);

The establishment within ten years of systems of communications and navigational satellites (in fact, perhaps by 1960-61);

Sending a man to the Moon within ten years and establishing radio-stations and telescopes there.⁹

The United States has also publicized the selection of a group from which its first "man in space" will be chosen with estimates on timing favoring 1961 as the probable year for the venture. Other estimates indicate the possibility that, if it is deemed important enough to justify the necessary appropriations, man may reach the moon by 1963 or 1966 and might even send an eight-man rocket to Mars by 1970 or 1980.¹

Soviet scientists too have announced plans to put men on the Moon and "to be on the planets by 1965".³ The President of the Soviet Academy of Sciences, A. N. Nesmeyanov, indicated that these achievements were called for by the current "seven year plan", while Professor Katayev also announced plans for a television relay station to be placed in a hovering orbit, probably in a location over Indonesia.⁹

## II.

The UN and its organs have been brought into contact with Antarctica and outer space in various ways. The United

⁸ *Ibid.*, p. 6. See also p. 74-76. The American Pioneer IV was tracked some 400,000 miles in March 1959 and, by 1962, it is predicted that communications at a range of 4 billion miles will be possible. *The New York Times*, March 4, 1959, p. 1, col. 1.

⁹ See *The New York Times*, April 9, 1959, p. 1, col. 5, and February 3, 1959, p. 1. See also NASA, *Some Thoughts on the Next Decade of Space Exploration*, November 21, 1958.

¹⁰ See Hearings before the NASA Authorization Subcommittee of the Committee on Aeronautical and Space

Sciences, United States Senate, 86th Cong., 1st Sess., or S. 1582, Part I, p. 120, 408-415. Von Braun has guessed that there may be a man on the Moon by 1963, *The New York Times*, August 29, 1958, p. 7. General Schriever estimates a moon landing by 1966 and a moon base by 1970, at great expense. See Hearing on H. R. 11881, p. 653.

¹ⁱ *San Francisco Chronicle*, March 29, 1959, Sect. I, p. 1.

¹² *Radioteknika*, January 1959. See also Harry Schwarz, *The New York Times*, April 26, 1959, p. 32.

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Kingdom filed an application with the International Court of Justice, seeking adjudication of the relative merits of the British, Argentine, and Chilean claims to sovereignty in the Antarctic. The Court was unable to take jurisdiction because Argentina and Chile refused to submit.¹⁰ In 1956 and 1958, India proposed that the question of Antarctica be placed on the agenda of the General Assembly¹¹ but was persuaded to withdraw its request before action was taken on it. Prime Minister Nash of New Zealand in the same two years suggested a role for the UN in an internationalization of Antarctica, and internationalization with demilitarization was advocated by Prime Minister Macmillan of the United Kingdom in 1958.

In regard to outer space, the first UN approach was through the channel of disarmament discussions. President Eisenhower in his State of the Union Message of January 10, 1957, fore shadowed the five-point disarmament proposal which was submitted to the UN by Ambassador Lodge four days later and which contained the stipulation that negotiations should seek to assure that outer space would be used only for peace ful purposes; international inspection was proposed for satellites, intercontinental missiles, space platforms, and long-range unmanned weapons.¹² Following various suggestions in the UN Disarmament Subcommittee, the General Assembly adopted on November 14, 1957, over the

objection of the Soviet bloc, a resolution calling for a study along the lines of the United States proposals.¹³ Various proposals and counterproposals were advanced, the Soviets linking the use of outer space with the use of "foreign" military bases. It was in this form that they submitted an item for the agenda of the Thirteenth General Assembly. The Soviet proposal included the establishment of a UN agency for international cooperation in the study of cosmic space.¹⁴ The United States also proposed an outer space item for the agenda¹⁵ and the two were combined as "Question of Peaceful Use of Outer Space".

The First Committee (Political and Security) considered the item at its 981st to 995th meetings, held from November 11 to November 24, 1958. The work in that committee proceeded initially on the basis of a Soviet draft resolution, submitted on November 7, which substantially followed the form of the Soviet Union's requested agenda item which continued to link the elimination of foreign military bases "with a program for the peaceful use of cosmic space under international supervision".¹⁶ On November 13, twenty nations, including the United States,¹⁷ submitted a quite different draft resolution¹⁸ calling only for the establishment by the General Assembly of an *ad hoc* committee on the peaceful uses of outer space to report to the Fourteenth General Assembly on:

¹⁰ *I.C.J. Reports* 1956, p. 12, 15.

¹¹ Documents A/3118, February 21, 1956, and A/3852, July 15, 1958.

¹² Department of State *Bulletin*, January 28, 1957 (Vol. 36, No. 918), p. 124; and *ibid*., February 11, 1957 (Vol. 36, No. 920), p. 226, 227.

¹³ *Ibid*., December 16, 1957 (Vol. 37, No. 964), p. 961.

¹⁴ Document A/3818, March 17, 1958.

¹⁵ Document A/3902, September 2, 1958.

¹⁶ See Document A/C.1/L.219, November 7, 1958, and, for the supporting reasoning, the statement by

Mr. Zorin, Document A/C.1/SR.982, November 12, 1958, p. 2-5. Curbs on the use of space were also proposed by the United States at about this time in the "surprise attack" talks then in progress. *The New York Times*, November 5, 1958, p. 5, col. 1.

¹⁷ The others were Australia, Belgium, Bolivia, Canada, Denmark, France, Guatemala, Ireland, Italy, Japan, Nepal, the Netherlands, New Zealand, Sweden, Turkey, Union of South Africa, the United Kingdom, Uruguay, and Venezuela.

¹⁸ Document A/C.1/L.220.

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1. (a) the activities and resources of the United Nations, its specialized agencies, and of other international bodies relating to the peaceful uses of outer space;

(b) the area of international cooperation and programmes in the peaceful uses of outer space which could approximately be undertaken under United Nations auspices to the benefit of states irrespective of the stage of their economic or scientific development;

(c) the future United Nations organizational arrangements to facilitate international cooperation in this field;

(d) the nature of legal problems which may arise in the carrying out of programmes to explore outer space.

The draft resolution then

2. Requests the Secretary-General to render appropriate assistance to the above-named committee and to recommend any other steps that might be taken within the existing United Nations framework to encourage the fullest international cooperation for the peaceful uses of outer space.

On November 18, the Soviet Union submitted a drastically revised version of its draft resolution which dropped mention of a UN agency and of the elimination of military bases and suggested instead the establishment of a UN committee for cooperation in the study of cosmic space and of a preparatory group, consisting of representatives of the Soviet Union, the United States, the United Kingdom, France, India, Czechoslovakia,

Poland, Romania, the United Arab Republic, Sweden, and Argentina, to draft a program for that committee.¹⁹ The committee was to continue the spirit of cooperation engendered during the International Geophysical Year, to organize the exchange of information, and to coordinate national research programs. Members of the twenty-nation group, however, objected particularly to the inclusion of so many Soviet satellites and "unfriendly" "neutral" nations on the preparatory group, and countered with a revised draft of their own resolution, which named as members of the proposed *ad hoc* committee Argentina, Australia, Belgium, Brazil, Canada, Czechoslovakia, France, India, Iran, Italy, Japan, Mexico, Poland, Sweden, the Soviet Union, the United Arab Republic, the United Kingdom, and the United States.²⁰ In addition, in subparagraph 1 (b), the words "the stage of their economic or scientific development" were replaced by:

the state of their economic or scientific development, taking into account the following proposals, among others:

(i) continuation on a permanent basis of the outer space research now being carried on within the framework of the International Geophysical Year;

(ii) organization of mutual exchange and dissemination of information on outer space research; and

(iii) coordination of national research programmes for the study of outer space, and the rendering of all possible assistance and help towards their realization.

Further, a draft resolution requesting the

¹⁹ Document A/C.1/L.219/Rev.1, November 18, 1958.

²⁰ Document A/C.1/L.220/Rev.1, November 21, 1958.

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United States and the Soviet Union to consider the problem of the peaceful use of outer space and to report to the committee of the General Assembly "on an agreed and practical approach to this problem" was introduced on November 24 by Burma, India, and the United Arab Republic,²¹ but was rejected on a roll-call vote. Compromise on the states to be included and on the Soviet desire to establish a more permanent body at once proved impossible of attainment, and the Soviet Union withdrew its draft resolution, since no "unanimous" decision was in sight, and unanimity, they argued, was essential in these matters. The revised twenty-power draft was then adopted as a whole by 54 votes to 9 (Soviet bloc) with 18 abstentions (Arab-Asian group plus Austria, Yugoslavia, Ethiopia, Finland, and Israel).²² The Soviet Union, Poland, and Czechoslovakia immediately announced that they would not cooperate in the *ad hoc* committee's work.²³

A resolution setting up the *ad hoc* committee in accordance with the First Committee's proposal was nevertheless adopted by the General Assembly on December 13, 1958,²⁴ but the Soviet position was unchanged and hardened.²⁵

In spite of the Soviet boycott, the United States pressed for a meeting of the committee, which convened on May 6, 1959. Apparently to avoid becoming involved in a "cold war" controversy, India and the United Arab Republic also

declined to attend. This was unfortunate, since the Soviet position seemed to have been based on the erroneous assumption that the committee was to have some power of decision and therefore might reach political conclusions. Actually the committee kept closely to its intended function of merely studying and reporting what problems needed further consideration on an international scale. This aspect of the committee's task was stressed by the United States delegation which, as was to be expected, took the leading role when the committee met.²⁶ The chairman, Ambassador Matsudaira of Japan, emphasized that "the Committee will never be permitted to act in any sense whatsoever as an instrument of the cold war"²⁷ and other delegates echoed this view. It appointed scientific and legal committees whose reports were approved by the full committee on June 18. The UN Secretariat also provided a report on the activities and resources of the United Nations, its specialized agencies, and other international bodies.²⁸

If one were planning now for 1980, it would be quite possible to make some reasoned and reasonable assumptions concerning factual situations which would then be confronted in Antarctica and in outer space. Indeed, a conservative set of assumptions might well be overtaken and passed by actualities in the two decades. The rate of progress in the realization of scientifically possi-

(Legal Adviser of the Department of State), who were alternative representatives, Department of State Bulletin, June 15, 1959 (Vol. 40, No. 1042), p. 883ff. See also the Draft Working Papers submitted by the United States Delegation in Documents A/AC.98/L.1/Rev.1 and A/AC.98/L.2.

²⁷ UN Press Releases PM/3728, May 6, 1959, and OS/4, May 7, 1959.

²⁸ See Documents A/AC.98/2, A/AC.98/3, and A/AC.98/4. The substantive points are discussed below.

²¹ Documents A/C.1/L.224 and Rev.1, November 24, 1958.

²² See, generally, Report of the First Committee, Document A/4009, November 28, 1958.

²³ See Document A/C.1/SR.995, November 24, 1958, p. 15.

²⁴ General Assembly Resolution 1348 (XIII), December 13, 1958.

²⁵ Press Conference of Ambassador Sobolev, *The New York Times*, April 28, 1959, p. 8.

²⁶ See speeches of Ambassador Lodge, Dr. Dryden (Deputy Administrator of NASA), and Mr. Becker

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ble developments will be in large part a function of the political (including strategic) importance which governments attribute to them and correspondingly the magnitude of the investments in men and money. The rivalries of the cold war, relative evaluations of prestige, profits, and also domestic politics, may all enhance or outweigh scientific and technological skills and interests. Now, in 1959, there are already some Antarctic and space problems calling for governmental decisions. We shall try to include these problems along with some more remote possibilities in an attempt to evaluate what role might be played by the UN and its specialized agencies or other forms of international organizations.

### III.

The measure of friendly international cooperation attained among eleven nations during the IGY is notable. It is being continued through SCAR (Special Committee on Antarctic Research) and COSPAR (Committee on Space Research),²⁹ two similar enterprises organized also by the International Council of Scientific Unions (ICSU). If the outcome of the current diplomatic discussions on Antarctica should be a decision to supplant or supplement these purely scientific and ostensibly non-governmental arrangements by an avowedly intergovernmental agreement, the preamble might read as follows:

> The Governments of [here would follow presumably the names of the eleven governments now participating in the negotiations initiated by the United States];

²⁹ But the Soviets have also raised the "parity" issue in this heretofore largely non-political milieu; see Walter Sullivan, *The New York Times*, April 28, 1959.

> Being desirous of promoting scientific, technological and economic development in the Antarctic area and facilitating the use of resources and concerted treatment of mutual problems, avoiding duplication in the work of existing research agencies, surveying needs, ascertaining what research has been done, facilitating research on a cooperative basis, and recommending research. ...

> With the substitution of the word "Antarctic" for "Caribbean", this is the text of the Agreement of October 30, 1946, for the establishment of the Caribbean Commission between the United States, Great Britain, France, and the Netherlands.³⁰ That Commission deals with a peopled area, but the governments established the Commission as a research and advisory body on matters of regional interest without impinging at all on the political administration of various parts of the area by the several states. The social problems which have interested the Caribbean Commission—and the comparable South Pacific Commission formed by the same states plus Australia and New Zealand in 1947—would not now concern an Antarctic Commission. Economic questions are still at the stage of geological and other scientific study, but with the introduction of nuclear reactors for heat and power, developments might well be relatively more rapid than they have been. Due to the enormous transportation costs to and in the Antarctic (now at about $6,000 a ton for supplies delivered at the Pole) nuclear power reactors would have there an economic competitive advantage which they now lack elsewhere. In the furtherance of a truly international endeavor, the states estab-

³⁰ T.I.A.S. 1799.

³¹ See Norman J. Padelford, "Regional Cooperation in the South Pacific: Twelve Years of the South Pacific Commission," in this issue, p. 380-393.

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lishing an Antarctic Commission could
in this detail make use of the Interna-
tional Atomic Energy Agency (IAEA)
which under Article III of its Statute is
authorized:

To make provision, in accordance with
this Statute, for materials, services, equip-
ment and facilities to meet the needs of
research on, and development, and prac-
tical application of atomic energy for
peaceful purposes, including the produc-
tion of electric power, with due consid-
eration for the needs of the under-
developed areas of the world.

The Agency itself may establish the "fa-
cilities, plant and equipment", and may
operate them with its own staff.²²

Before continuing to note other exist-
ing international organizations whose
services might be utilized in the Antarc-
tic, we may consider the problem of the
control of the "Antarctic Commission"
itself. For the time being it may be
assumed that the Commission would not
discharge onerous governmental respon-
sibilities but would be in general a co-
ordinating machinery for the activities of
the participating governments and or-
ganizations. It would thus avoid, per-
haps, wrangles over a "veto" power. It
might not face the complexities of the
political international organizations or
need to devise a form of weighted vot-
ing as in such institutions as the Inter-
national Bank and Monetary Fund, the
International Wheat Council, and the
like. We may look later at those prob-
lems in terms of a more distant future.

At the outset it may be noted that we
are assuming that the twelve govern-
ments most directly interested by reason
of past and present activities in Antarc-

tica would be parties to the treaty creat-
ing the hypothetical Antarctic Commis-
sion. Other countries, however, might
also wish to be included. Poland, for
example, with a good record for scien-
tific work in the Arctic and for general
capacity in the pertinent sciences, is about
to share in Antarctic work at one of the
Soviet bases. Brazil, Uruguay, and Peru
have begun to evince an interest and
have pointed out that they, too, can
invoke the sector principle as a basis
(however frail it may be in law) for a
sovereign claim. Japan is undoubtedly
interested in the area although she re-
nounced all claims in the Peace Treaty.
If it were considered necessary to take ac-
count of these and other demands for
representation in a general settlement,
there are various precedents which could
be utilized. For example, there are some
64 states which are members of the In-
ternational Atomic Energy Agency and
which participate in its General Confer-
ences, but the control is exercised by a
Board of Governors of ten members of
which five are the nations most advanced
in the "technology of atomic energy, in-
cluding the production of source mate-
rials"; the other five are also to be ad-
vanced in the art or producers of raw
materials. Similarly in the newest of the
specialized agencies, the Intergovern-
mental Maritime Consultative Organiza-
tion (IMCO), the directing Council of
sixteen is made up of representatives of
six nations "with the largest interest in
providing international shipping serv-
ices", six "with the largest interest in
international seaborne trade", and four
others elected according to defined cri-
teria which also reflect interest in the

²² What the Agency would decide to do is another
matter; see von Mehren, "The International Atomic

Energy Agency in World Politics," *Journal of Inter-
national Affairs, 1959* (Vol. 13, No. 1), p. 57.

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subject.²⁸ It is readily seen that a comparable formula could be used for an Antarctic Commission with a directing Board or Council composed of those states "which maintained stations in Antarctica during the IGY". This category, it will be recalled, includes all the states which have pressed territorial claims, but this fact does not exclude possible demands of other states to participate.

Although it would be quite misleading to lay too much stress on similarities, the embryonic experience with a plan for internationalizing Spitzbergen is well worth recalling in this context.²⁴ Spitzbergen is an arctic area of some 24,000 square miles lacking, as does Antarctica, any indigenous population. Several states claimed it, many of them on tenuous legal grounds, as is also true in Antarctica. Again the two places are similar in that Spitzbergen waters for a time were one of the principal whale fisheries. The discovery of coal and iron near the end of the nineteenth century led to the staking out of claims and actual mining by companies from Sweden, Norway, the United States, Great Britain, and Russia. Norway maintained a "wireless" station and Germany a meteorological post. Norway took the initiative on Spitzbergen (as the United States has on Antarctica) to summon the "interested countries" to a conference in 1910; Belgium, Denmark, France, Germany, Great Britain, the Netherlands, Sweden, and Russia were included. The conferees agreed on a delegation of authority in conformity with which Norway, Sweden, and Russia met in 1912 and drew up a Protocol of 77 articles to meet the

need for: 1) obviating the disadvantages arising from the lack of any legal order in Spitzbergen; 2) protecting the exploitation of natural resources; 3) preserving the status of *terra nullius*;²⁸ and 4) recognizing, due to their share in the discovery, their territorial proximity, their investment, or their scientific explorations, the special concern of these three states in the legal organization of Spitzbergen. (The formula could be lifted almost bodily for incorporation in a General Assembly resolution asking the eleven states to deal with the Antarctic situation.) The Protocol never entered into force because World War I intervened and at its close the Principal Allied and Associated Powers, with Russia *hors de combat*, recognized the sovereignty of Norway, which has been exercised over Spitzbergen ever since, subject to an obligation to keep it dimilitarized. The abortive plan would have created a commission of three which would meet once a year in the country of the President, the presidency rotating annually. The commission in general was to make decisions by unanimity. It was to prescribe laws and regulations for all necessary matters and to provide postal, telegraphic, and other public utility services. It was to appoint a "justice of the peace" to serve for six years as a special international functionary deciding cases involving real property, rights of workers and employers, and other cases in contract or tort which had special Spitzbergen elements. In general, appeal lay to the commission or to the national courts of the parties. In criminal cases, the person charged was to be sent home

²⁸ As IMCO's history indicates, no criterion is assured of automatic application; see Jessup, "The United Nations Conference on the Law of the Sea," 59 Col. Law Rev. 234, 257 (1959).

²⁴ See Gray, *Spitzbergen and Bear Island*, Washington, Government Printing Office, 1919.

²⁸ This term in international law usually implies that the territory may be acquired and submitted to the sovereignty of a state, or states. It would seem to have been more appropriate to use the term *res communis*.

373

for trial, but the commission could provide penalties up to three months in jail and limited fines for infraction of its local laws and regulations; another appointee, a commissioner of police, was in charge of an "international police force" and also sat as a police magistrate. It is interesting that this police commissioner had to be of the nationality of the majority of the persons living or working in Spitzbergen.³⁶ In pursuance of the objective of maintaining Spitzbergen as terra nullius, it was provided that no state could acquire or occupy real property except for scientific, humanitarian, or religious purposes. Private persons could acquire rights of occupation and exploitation but not absolute title. The commission was to levy rates and taxes to cover the costs of administration except that the commissioners were paid by their own governments and the three states agreed to share equally in meeting any deficits. Other states were free to accede but control remained in the commission of three.

It would have been an interesting experiment; its statute remains an interesting prototype. A comparable statute for Antarctica today would no doubt utilize some of the resources of the UN system such as recourse to the International Court of Justice and the services of various specialized agencies. The over-all political control might, but probably would not, take the form of a trusteeship with the UN itself as the administering power in accordance with the permissive language of Article 81 of the Charter. In this connection one would refer to the

plan drawn up by the Trusteeship Council at the request of the General Assembly for the administration of Jerusalem as a corpus separatum³⁷ and would recall that several delegations proposed the use of such a UN trusteeship as a solution for the disposal of one or more of the former Italian colonies in North Africa.³⁸ Any such suggestion would involve the renunciation of present national claims and this would be stoutly resisted by certain of the claimants. The precedent of the original plan for Trieste also comes to mind,³⁹ but it is questionable whether there would be agreement upon reproducing for Antarctica the role which the Security Council was supposed to exercise for Trieste. The Statute of Tangier,⁴⁰ with some UN adaptations, would seem more suitable. But all of these regimes, unlike Antarctica, had to do with governing people—a significantly simplifying difference in favor of an Antarctic solution.

The Spitzbergen plan, in part by preserving the status of terra nullius, might have escaped the fate of most international experiments with a condominium, namely, failure. But the classical type of condominium is joint government by two or possibly three powers, both or all of which wanted sole sovereignty and neither of which was willing to concede anything which would enhance the power or prestige of the other. The Franco-British condominium of the New Hebrides is the prime example; their previous joint experience in Egypt should not have encouraged France and Britain to try again. The British-Ameri-

³⁶ Parenthetically, one may observe that except for naval or other military personnel it is doubtful whether an American committing a theft or a killing in Antarctica today would violate any law since no law is applicable.

³⁷ General Assembly Official Records (5th session), Supplement No. 9, Document A/1286, 1950.

³⁸ See Document ST/DPI/SER.A.70, 1952.

³⁹ Treaty of Peace with Italy, 49 U.N.T.S.3, Arts. 4,21,22 and Annexes VI-X.

⁴⁰ Cmd. 2096, 1924, Cmd. 2203, 1924, and T.I.A.S. 2752.

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INTERNATIONAL ORGANIZATION

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can condominium over Canton and En-
derbury Islands has the unique distinc-
tion of being successful, perhaps due to
the fact that these atolls were unin-
habited and have the single-purpose use
of acting as a stop-over on trans-pacific
flights. Antarctica shares the advantage
of being unpeopled.

Within any type of over-all framework
it may eventually be necessary to regulate
the exploitation of the natural resources
of Antarctica. So far as whaling is con-
cerned, this industry is already regulated
by the International Whaling Commis-
sion, which has the authority to establish
quotas and to fix the closed seasons; the
closed season is so well respected that the
last days of the open season sometimes
pose an irresistible temptation to exceed
quotas. This Commission does not have
and does not desire any connection with
the UN.

If Antarctic mineral resources prove
economically attractive—although at pres-
ent it would seem that many minerals
might more feasibly be mined from the
oceans—there are various precedents
which might be examined. It would be
possible in the first place to delegate
responsibility to certain states particularly
interested, just as the 1911 Fur Seal Con-
vention delegated to the United States
and Russia the taking of seal skins on
the islands, subject to a duty to share
proceeds with other states which sur-
rendered their right to continue pelagic
sealing.⁴¹ More applicable would be the
interesting device worked out under the
auspices of the Organization for Euro-
pean Economic Cooperation (OEEC)
for the chemical processing of irradiated

fuels in the interest of a group of Euro-
pean countries. The twelve states con-
cerned—Austria, Belgium, Denmark,
France, Western Germany, Italy, Nor-
way, the Netherlands, Portugal, Sweden,
Switzerland, and Turkey—signed a con-
vention which creates an international
stock company known as Eurochemic
(European Company for the Chemical
Processing of Irradiated Fuels). This
company derives its legal form and status
from the treaty itself without the inter-
vention of any national legislative act.
It is governed by the Convention and its
annexed Statute, with the law of the
headquarters state, Belgium, as a resid-
uary source. The capital of the Company
consists of twenty million European Pay-
ments Union units of account, divided
into 400 shares initially allotted among
and subscribed by the participating gov-
ernments or their atomic energy agen-
cies.⁴²

This device of an international stock
company created by treaty is to be dis-
tinguished from the method used to set
up the Bank for International Settle-
ments in 1920; the Bank actually was
chartered by Switzerland, although by
treaty Switzerland restricted its freedom
to deal with the bank as a Swiss stock
company.⁴³ One can envisage the event-
ual establishment by treaty of an inter-
national stock Company for the Exploita-
tion of the Minerals of Antarctica
(CEMOA), stock being allocated on the
basis of the extent of the exploration and
development of the continent or parts of
it, perhaps weighted by the period of
time over which such activities have been
carried on. The capital would presum-

⁴¹ III Malloy, Treaties, 2966.

⁴² The Eurochemic Convention and Statute are in *Progress in Nuclear Energy, Series X, Law and Administration, Vol. I*, ed. Herbert S. Marks, 1959, p. 916-926.

⁴³ This latter device was used in setting up Eurofima in 1955 and the International Company of the Moselle in 1957.

375

ably be contributed proportionately by the shareholders, who would have a vote on the control board and a share in the profits corresponding to their stock holdings. IAEA might furnish CEMOA with a nuclear power plant. The treaty might provide for annual informational reports to the UN Economic and Social Council (ECOSOC). Scientific cooperation might be continued under SCAR, which has proven value, rather than attempting some new function of the United Nations Educational, Scientific, and Cultural Organization (UNESCO).

Any general convention on the international administration of Antarctica might provide that meteorological and satellite-tracking stations operated on the continent by any of the parties would be operated for the benefit of the whole international community. The World Meteorological Organization (WMO) would naturally be involved in the reception and distribution of weather information as under existing patterns. It is interesting that WMO already has a special Antarctic function and one which has the characteristic, rare for an international organization, of providing for the custody of secret information. Whaling factory ships in Antarctic waters can supply important weather information but whalers do not like to disclose their locations to their competitors. To meet this situation the following procedure has been set up by the Executive Committee of WMO: Cape Town and Sydney are designated as the two centers for collecting weather messages from whaling ships. The South African Union Weather Bureau prepares individual ciphers for issue to each of the whaling factory ships operating in the Antarctic,

copies of the ciphers to be held by the ship and each of the two collecting centers "and by no one else". The two centers make daily broadcasts of the reports from the whaling factory ships excluding the names and positions of the ships, but this latter information is encoded in another cipher held only by national meteorological services requiring the broadcasts and *not* by any of the whaling factory ships. In return for the reports from the ships, the two centers broadcast daily weather bulletins for the express use of the ships.⁴⁴ One may add that during the IGY the United States operated a "Weather Central" at Little America with scientists from five other countries participating on the staff.

It is beyond the scope of this article to speculate about the political probabilities of the acceptance of any of these various devices by particular states or by the world community. That there will be difficulties has already been shown by the experience of the United States in trying to establish a diplomatic agreement on Antarctica. In May 1958, the United States formally proposed to the other nations engaged during the IGY in Antarctic investigations that they reach "agreement among themselves on a program to assure the continuation of the fruitful scientific cooperation". Reference was made to the conflicting political claims and to the position of the United States, and in order to promote the peaceful development of the Antarctic, a treaty was suggested which would assure freedom of scientific investigation and the use of the Antarctic for peaceful purposes only. It was suggested that such a treaty could be concluded without affecting legal rights or claims—that "the

⁴⁴ Final Report of the Commission for Maritime Meteorology of the WMO, London, July 14-29, 1952,

WMO—No. 10.RP.2; Res. of the Exec. Comm. Res. 24 (EC-III).

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INTERNATIONAL ORGANIZATION

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legal status quo in Antarctica would be
frozen for the duration of the treaty,
permitting cooperation in scientific and
administrative matters to be carried out
in a constructive manner without being
hampered or affected in any way by
political considerations". "The coopera-
tion of the specialized agencies of the
United Nations would be sought" as
well. As President Eisenhower com-
mented on May 3, 1958, this proposal
would perpetuate the successful coopera-
tion of the IGY, provide that the Ant-
arctic be kept open to all nations to con-
duct scientific or other peaceful activities
there, and prevent the Antarctic from
becoming an "object of political conflict".
Negotiations among the twelve countries
were carried on with complete respect
for their confidential nature during an
entire year in which some 47 meetings
were held. Finally on May 28, 1959, the
Department of State announced that the
diplomatic conference on the Antarctic
would open in Washington on October
15.

IV.

The proximate problems relating to
outer space which are of concern to the
UN were very well summarized by the
General Assembly's *Ad Hoc* Committee
on the Peaceful Uses of Outer Space
whose establishment has been described.
The reports of the Legal and Technical
Committees reflect to a considerable ex-
tent the suggestions made in the draft
working papers submitted by the United
States delegation, although other useful
working papers were submitted by
France, Italy, and Mexico, and, as men-
tioned, the Secretariat summarized exist-
ing international organizations' facilities.
Representatives of UNESCO, WMO, the
World Health Organization (WHO),

and the International Civil Aviation Or-
ganization (ICAO) attended the meet-
ings of the Technical Committee. It is
interesting to note that one of the
UNESCO representatives was Mr. Van
de Hulst, the President of COSPAR.

Considering first the problems of a
technical or a scientific nature, attention
was called to the various international
agencies which were already concerning
themselves with outer space or which
might be in a position to make useful
contributions. It was noted that ICAO,
while not now charged with any duties
in regard to outer space, might deal
with problems of space vehicles passing
through the atmosphere and resulting
dangers. UNESCO under a resolution
establishing its program for 1959-1960 in-
cluded "exploration of extra-terrestrial
space". It was suggested that this might
be mainly an informational and publica-
tion activity, but special attention was
called to the value of the Provisional
International Computation Center in
Rome. On the other hand, it was noted
that WMO is actively concerned with the
developments of meteorological satellites,
and their potentialities were dwelt upon
at some length. Passing reference was
also made to WHO as a useful medium
for stimulating research and publishing
medical findings on medical and health
problems associated with space explora-
tion and travel. The largest immediate
role seemed to be seen for ITU, which is
already involved through its Interna-
tional Radio Consultative Committee
(CCIR), a permanent organ of ITU,
which on United States initiative had
taken up at a session beginning in Los
Angeles in April 1959 the problem of
allocation or protection of frequencies
for artificial earth satellites and space
vehicles. The recommendations of CCIR

377

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were considered at the ITU Radio Con-
ference in Geneva in August 1959.

The usefulness of participation in
space efforts of nations lacking launch-
ing capabilities, particularly through such
voluntary cooperative scientific arrange-
ments as COSPAR, was stressed by the
Technical Committee.⁴⁸ The United
States was complimented during the de-
bates on its offers to permit scientists
from other nations to design experiments
to be carried out by satellites launched
for that purpose by the United States.
The stress was all on cooperative efforts
of the COSPAR type although it was
generally agreed that, when the research
stage was passed, functional intergovern-
mental arrangements of the WMO or
ITU type were probably essential. The
possibility of international launching sites
was also raised. It should be noted that
the catalogue of possibilities discussed
provides a full answer to those who
wonder whether the UN and its special-
ized agencies have any immediate role in
connection with outer space.

The Legal Committee emphasized
that it was not to consider answers but
merely to see what the problems are and
perhaps to suggest how the answers
might be sought. It observed that the
provisions of the United Nations Charter
including the Statute of the International
Court of Justice are, as a matter of prin-
ciple, not limited in their operation to
the confines of the Earth. The United
States delegation was perhaps most inter-
ested in the applicability of Article 51
and the right of self defense,⁴⁶ but the
Committee dealt more broadly with the

general principles of friendly coopera-
tion. The Committee agreed that not
enough was known about the actual and
prospective uses of outer space to make
a comprehensive code practicable or de-
sirable at this time but that it was neces-
sary to take "timely, constructive action
and to make the law of space responsible
to the facts of space". "It was unani-
mously recognized that the principles
and procedures developed . . . to govern
the use of such areas as the air space
and the seas deserved attentive study for
possible fruitful analogies . . . [though]
outer space activities were distinguished
by many specific factual conditions . . .
that would render many of its legal
problems unique."⁴⁷

Among other priority problems in-
cluded by the Legal committee was lia-
bility for injury or damage caused by
space vehicles, including the need for
machinery to determine liability and en-
sure payment of compensation. Here,
compulsory submission to the ICJ of dis-
putes between states as to liability was
suggested and ICAO experience with
respect to the 1952 Convention on Dam-
age Caused by Foreign Aircraft to Third
Parties on the Surface was felt to be rele-
vant. Allocation of radio frequencies,
termination of transmissions, avoidance
of interference between space vehicles
and aircraft, identification and registra-
tion of vehicles through markings, call
signs and orbit and transit characteristics,
registration and coordination of launch-
ings, and reentry and landing problems
were also considered of current impor-
tance.

⁴⁵ And would not all countries be interested in being able to telephone anywhere in the world for twenty cents through the use of radio-relay satellites, as forecast by Dr. Lloyd Berkner in his recent address as President of the International Scientific Radio Union? *The New York Times*, May 7, 1959.

⁴⁶ Cf. Mr. Becker's views in Department of State

*Bulletin*, September 15, 1958 (Vol. 39, No. 1003), p. 416, and *JAG Journal*, February 1959, p. 4.

⁴⁷ At the insistence of the Argentine representative, the language of an early draft was modified to avoid the possibility that it might be interpreted to mean that Antarctica is *res communis* rather than subject to national sovereignty.

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Problems which may be ignored for the present, as either too remote from the point of view of technological development or because activities can be conducted without their resolution, were stated as including the determination of precise limits for air space and outer space, the provision of regulations against contamination of outer space or from outer space, the promulgation of rules covering sovereignty, exploration, settlement, and exploitation of celestial bodies, and rules for the avoidance of interference among space vehicles.⁴⁸

In addition to the reports already noted, the Committee's chairman prepared a working paper responsive to paragraph 1(c) of the General Assembly resolution on future organizational arrangements to facilitate international co-operation. He suggested that no autonomous intergovernmental agency should be created at this time nor should any such existing agency be asked to undertake over-all responsibility.⁴⁹ A small unit in the Secretariat to serve as focal point for cooperation; the creation of a small committee advisory to the Secretary-General; and the creation of a committee of the General Assembly to perform certain general functions and tasks were suggested.⁵⁰ Discussion in the full Committee failed to lead to an agreement on the criteria to be applied in the composition of such an Assembly committee. On the basis of the Swedish representative's amendments and further discussion, the chairman's suggestions were

⁴⁸ The United States has also suggested that the problem of relations with extraterrestrial life has a very low priority. Document A/AC.98/L.7.

⁴⁹ Document A/AC.98/L.10.

⁵⁰ As finally approved, the suggested role of an Assembly Committee would include the following function:

“(a) To provide a focal point for facilitating international cooperation with respect to outer space activities undertaken by Governments, specialized agencies, and international scientific organizations;

substantially adopted as the conclusions of the Committee.

From the viewpoint of prospects for joint action through international organization, the situation of Antarctica and outer space is little different from more familiar problems. A UN Trusteeship over Formosa is widely discussed as one possible element in a solution of the “two Chinas” problem. Some have thought that transfer of administrative responsibility to the UN would be a key to the deadlock over West Irian. A variety of UN roles has been suggested for the adjustment of the Berlin crisis. Throughout the disarmament discussions, it has been rather taken for granted that the UN has a part to play. The expansion of the UN's already extensive activity in technical assistance especially for newborn states is not improbable. There is also the Secretary-General's plan for building up a “loan service” of higher administrative officials. After long delay, IMCO has actually come into existence.

The Commission to Study the Organization of Peace in its Tenth Report came out boldly in favor of United Nations administration of Antarctica. It saw no technical obstacle to the United Nations acquiring title under international law—nor do we. It admitted that this would have to be done at the request or with the consent of the states claiming title. That political obstacle is still to be surmounted as indicated, for example, by the adamant position of Argentina and Chile.

(b) To study practical and feasible measures for facilitating international cooperation, including those indicated by the Ad Hoc Committee in its report under paragraph 1 (b) of the resolution;

(c) To consider means, as appropriate, for studying and resolving legal problems which may arise in the carrying out of programmes for the exploration of outer space;

(d) To review, as appropriate, the subject-matter entrusted by the General Assembly to the Ad Hoc Committee in resolution 1348 (XIII).”

379

The question whether or not progress
will be made along the lines of inter-
national cooperation in all these various
realms cannot be answered unless one
knows the general drift of international
politics during the months and years to
come. If the proposed summit meeting
is held and has a favorable outcome, it
would seem very likely to entail agree-
ment on the long drawn-out negotiations
on nuclear tests. On that small stone
might be laid the beginning or rather
the resumption of the technical talks on
surprise attack. The nations will continue

to jockey for advantage and the United
States alone cannot produce international
cooperation, though it can help or
hindern. Perhaps through the squalls of
politics, scientific cooperation on the
IGY model will sail along on modest
voyages. Whatever the timetable, the
probabilities of expanding uses of inter-
national organizations, particularly with
reference to Antarctica and outer space,
are sufficiently great to merit the devo-
tion of much scholarly and govern-
mental time and effort.