What Are the Rights of High Flight?

WHEN the U.S. proclaimed that it has a defensive right to fly high in the sky above Communist territory, it entered into an area of international law as unexplored and uncertain as outer space itself. Says International Lawyer and Political Scientist Hans Morgenthau of the University of Chicago: "There are no legal precedents for such flights." The U.S. now finds itself in a grey area between war and peace, in a time when old codes are frequently stretched or violated. In the past cold-war decade. Soviet or Red Chinese combat planes have attacked and gunned down half a dozen U.S. patrol planes, several of them well outside Communist borders. The cost: at least 28 U.S. lives. The penalty paid by the Soviets, despite U.S. protests to the World Court: none. In West Berlin, refugees are kidnaped by Communist agents and smuggled behind the Iron Curtain --beyond the reach of Western law. Considering these cold-war realities, does the U.S. have a legal or moral right to bend or break the generally accepted rules covering sovereignty and flights over national borders? The nation's ultimate position hinges on the answers to other questions:

Is espionage legal? All countries have spies. International law holds spying legal and moral. But no international law protects a captured spy. He has no rights. Usual penalty for wartime spying death.

Are frontiers held inviolable? Invasion of another state's frontier is a well-established, old-fashioned breach of international law.

Do frontiers extend into the sky? All nations agree that a country's territorial rights extend above its land. But that agreement is fairly new--dating from World War I, when man began to appreciate the potential of the airplane as a weapon of combat and reconnaissance.

How high does sovereignty go? Some legal experts contend that sovereignty ends with the last trace of oxygen--more than 600 miles up. Others note that the three-mile limit at sea was fixed by the range of oldtime land-based guns, figure that the same measure of "effective control" can be applied to the air. By that gauge, a surveillance plane flying at 80,000 ft. could penetrate the U.S.S.R. without violating sovereignty, because so far as is known, no Soviet land-based rocket, missile or plane could touch it.

If the U.S. claims the right to fly over the U.S.S.R., would it have to allow Soviet spy planes to fly over the U.S.? The Russians would have a strong case. The State Department seeks to deflect it by reminders that President Eisenhower has been working toward an internationally recognized right of overflight in his "Open Skies" plan offered at the 1955 summit conference in Geneva.

Would U.S. defenders now fire upon any Soviet reconnaissance planes if they were caught over U.S. territory? Yes, unless the pilot agreed to land and surrender himself and his craft.

Is there a legal difference between an unarmed reconnaissance plane and an unarmed reconnaissance satellite, such as the U.S.'s Tiros? Plenty. No nation has claimed sovereignty over outer space, where satellites spin. The Soviets have not complained about the well-publicized fact that Tiros takes pictures of Soviet territory. One reason is that Soviet satellites have certainly passed over U.S. territory (though the U.S.S.R. has no picture-taking Tiros types in orbit). Thus the U.S. can make a legal argument that the U.S.S.R. has accepted satellite orbitings by "custom."

Is there a recognized law of self-defense? International law recognizes self-preservation as a fundamental right. For centuries the self-defense argument has often been used--and sometimes abused--to justify actions of one nation against another.

Can the U.S. legally spy in the sky for self-defense? Lawyers disagree--sharply. Says Milton Katz, director of international legal studies at Harvard: "The argument of self-defense is difficult to maintain if we're not at war." But other students of international law hold that in the age of hydrogen weapons, when nations can be devastated in a single strike, there is indisputable equity in the position taken by the U.S. Government; yet the Soviets could also claim the equal self-defensive right to shoot down any foreign-spy planes, since radarmen on the ground cannot distinguish an unarmed surveillance plane from a plane carrying a hydrogen bomb.

Does Soviet Russia recognize international law? Rarely. It has never accepted the jurisdiction of the World Court. It was one of the few major nations that declined to sign the 1944 Chicago Convention on International Civil Aviation, which says "every state has complete and exclusive sovereignty over the air space above its territory." It has questioned whether any treaty with a capitalist nation is binding on a Communist country. At its best, the body of international law is incomplete, inconsistent--and sometimes incomprehensible. But the U.S. has pledged to support and contribute to a world rule of law. The challenge facing the U.S. is to clarify existing law and to lead the way in expanding the law to cover new situations. In laying down his argument for the U.S. right to defend itself from surprise attack by intelligence activities, Secretary Herter may have contributed to that expansion. Columbia University's Professor Philip Jessup believes that the only practical solution is for the U.S. and its allies to declare "a state of intermediacy"--something between war and peace--and lay down laws to regulate it, just as there are separate laws for war and peace.

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