The Frontier Is Up

Who owns the moon -- lovers and songwriters, or the first nation to establish a base there? Who pays damages if one country's space capsule crash-lands in another's biggest city? May political propaganda be beamed to earth from space? Or TV commercials? When the U.S. orbits a reconnaissance satellite, are the Russians entitled to knock it out if they can, like another U2? If space explorers meet a race of intelligent nonhumans, how are men and bug-eyed monsters to live together under the rule of law? Such questions were once the specialty of science-fiction writers; lately they have become the serious concern of lawyers and diplomats.

Open to All Mankind. With no space cases to set precedents, legal theorists are scratching hard for down-to-earth parallels to these no longer far-out problems. The most compelling comparison is to the law of the high seas--as a pair of massive new books on space law make clear. In both Space Law and Government, by Andrew G. Haley (Appleton-Century-Crofts, $15), and Law and Public Order in Space, by Myres S. McDougal, Harold Lasswell and Ivan A. Vlasic (Yale, $15), maritime law, which has grown out of the common consent and reciprocal needs of seafaring nations, is described as one of the most effective, enforceable varieties of international law. With its emphasis on trade and fisheries, maritime law offers convenient models for legal control of whatever resources are found in space.

Most important, the maritime law doctrine that the seas are open to the use of all mankind explains how to avoid the insoluble problem of extending into space the exclusive right of each nation to the air above it. Sovereignty extends upward as far as the hunter's weapons can reach, suggested Dutch Jurist Hugo Grotius in 1623, and allowing for the extra zip of modern musketry, today's pragmatic solution turns out to be much the same.

Perhaps the most practical cut-off line is suggested by Lawyer Haley, who also happens to be an ex-president of the American Rocket Society. Haley argues that a nation's airspace is best defined by the altitude (about 50 miles) at which the atmosphere becomes too thin to provide further aerodynamic lift to aircraft. Professor McDougal and friends demur. They prefer to leave the law flexible, to let it grow with a growing accumulation of cases.

As for "advanced forms of nonearth life," the scholars emphasize the need for setting a law-abiding example. They make a sobering reminder of European excesses during the conquest of the newly discovered Americas. Any four-eyed visitors from Epsilon Eridani might well turn out to be ahead of mankind in technology, say the space lawyers; earth may yet become someone else's new world to colonize.

First Enactment. Though they have yet to be put to use, in some respects the new law books have already been superseded. Last week the U.N. Committee on the Peaceful Uses of Outer Space approved a resolution that was agreed on beforehand by the U.S. and Russia. The resolution states that no nation can claim sovereignty over the moon and planets; that states are liable for damages their space vehicles cause; that an astronaut who makes an emergency landing will be promptly repatriated along with whatever remains of his space ship.

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