KEEPING LAW & ORDER IN SPACE

IN all his long upward odyssey, man has never been confronted with anything quite like it. It is an ocean without shore, yet it bathes every nation's border. It is a military "high ground" of measureless potential, yet no nation has so far dared to exploit it. It is a resource of such proportions that man has only begun to tap it. And in all this vast province of opportunity called space, no writ runs. All the experience of quest and conquest, of discovery and exploration of the earth provides scant precedent for dealing with the promise and problems of space.

The first precedent was set by Sputnik 1, which, in 96.2 minutes in 1957, sailed blithely across the skies, bridging the theoretical boundaries of nations without so much as an izvinite or by-your-leave. What could any of the violated nations do about it? Nothing. None of them even thought to protest. That spontaneous abdication of national prerogative in deference to Sputnik's achievement still informs the approach to space nearly a decade--and thousands of trespasses--later. No established rules exist in space, and no method has yet been found to make rules effective there. No one has devised a way to station a traffic cop or patrol vessels to guard the boundaries of some theoretical mare nostrum of space. A canon of space law can thus be created only by mutual consent.

An Arch of Forbearance

So far, the approach to space has been remarkably amicable, even though that attitude requires the mutual tolerance of the U.S. and Russia, at present the only two space powers of any consequence. The reasons: neither nation is quite sure what the uses of space are; neither has determined whether it is possible to dominate outer space, or whether success would be worth the immense price. The result is a kind of detente, a protective arch of forbearance beneath which a small group of international lawyers have been scurrying about attempting to establish order. In particular, the legal subcommittee of the United Nations' 28-member Committee on the Peaceful Uses of Outer Space has been wrestling with the problems of bringing law and order to a new and uncharted world in the hope of having a draft treaty ready for General Assembly approval this fall.

The member nations involved in drawing up the space treaty have already agreed on nine of the roughly one dozen clauses planned for the treaty. Working in Geneva and New York, they have agreed to ban weapons of mass destruction from outer space, make the moon and all other celestial bodies ''the province of all mankind," conduct all activities in outer space under "international law, including the U.N. charter," and even to report to all other nations and to the U.N. "any phenomena they discover in outer space that could constitute a danger to the life and health of astronauts."

Just when the conferees seemed to be making good progress, the Soviet Union suddenly brought matters to a halt. It demanded that any nation granting tracking facilities to one country must grant "equal conditions" to all others--which might mean that the services of the worldwide system of tracking stations laboriously negotiated and constructed by the U.S. would be available on demand to the Russians. Many of the nations involved promptly objected, having no wish to have Soviet technicians invade their observatories. Nonetheless, the Russians have insisted that this demand be the basis for all other agreements. As the new session of the U.N. Assembly opened last week, U.S. Ambassador Arthur Goldberg declared that a space treaty was "too important and too urgent to be delayed." He made a dramatic offer, in the hope of ending the impasse, to allow the Russians tracking facilities on U.S. territory if a "mutually beneficial" pact can be negotiated. Whether the treaty moves forward or dies is now up to the Soviet Union.

While the U.N. is trying to put together the world's first space treaty, space lawyers and scientists inside and outside the U.N. are grappling with a host of problems that are almost as vast and formless as space itself.

-THE BORDERS OF SPACE. One of the space lawyer's first problems is staking out the territory. Where does space begin? The classic doctrine, derived from ancient Roman law, is cuius est solum eius est usque ad coelum--"who owns the land owns even to the skies." This was incorporated into English common law as early as the 16th century, but the development of the balloon and the airplane brought modifications. The 1919 Paris Convention on aerial navigation and the International Civil Aviation Convention in Chicago in 1944 recognized that a nation has "complete and exclusive sovereignty over the air space above its territory." But where does air space end? There is growing support for the proposal of the late Professor Theodore von Karman, who suggested that the limit was about 50 miles up, where molecular oxygen breaks down and airlift vanishes. Legally, the question is not yet settled but, like much of developing space law, the "Von Karman line" is today effective by default: what cannot be policed can scarcely be claimed.

-A QUESTION OF SOVEREIGNTY. Alongside the question of where space begins is the matter of who owns it. Russia and the U.S. agreed that no state shall claim sovereignty over the moon or any other celestial body in a spirit of mutual self-interest, also pledged that neither would attempt to establish any military base on the moon or elsewhere in outer space. The model for this formula is Antarctica, whose hostile environment, lack of population and high cost of exploration offer good analogies to the moon. In Antarctica the exploring nations set aside any territorial claims for the term of a 30-year treaty, agreed that no one should establish any military base or installation there and accepted the principle of mutual inspection. The agreement has worked in Antarctica, and the U.N. hopes that it will work in space too.

Like Antarctica, the moon was originally thought to be of huge strategic and economic importance, particularly as an invulnerable base for rockets. But, as with Antarctica, the strategists have had second thoughts. First off, the expense of ferrying missiles to the moon and installing them would be literally astronomical. Any rockets launched from the moon would be in transit to the earth for more than 30 hours, ample time for them to be detected, identified and destroyed by an anti-missile system. As for the moon's economic potential, any metal or mineral found there would have to be priceless beyond anything on earth to make it worth exploiting. Some experts figure that the cost of shipping material back to the earth could run to roughly $500,000 an ounce.

-THE TRAFFIC PROBLEM. Though the military or commercial exploitation of space is some way off, a traffic problem is already developing. Some 1,111 man-made objects and fragments of objects are circling the earth--and that is just the beginning. The problem is not yet acute; space is so vast that the chances of a collision--and the attendant legal problems --are still greater than a million to one. But as more and more satellites are lofted, some form of traffic control will have to be worked out.

To keep track of the objects in space--and particularly to detect among them any "dark," or radio-silent, object that might house a nuclear weapon or pose some other threat--the U.S. has developed a highly sophisticated system of surveillance. Each object now in outer space is given its own number and meticulously tracked by radar sensors (which can follow an object as small as a .30-cal. rifle bullet 200 miles into space), computers and special cameras with a range of 50,000 miles. The North American Air Defense Command (NORAD) can tell where every object is at any given moment. Of the orbiting objects, 251 are "useful payloads"--201 American, 43 Russian, three French, two British and two Canadian. The remaining 860 pieces are ''garbage," including Mike Collins' lost Hasselblad camera and Dick Gordon's jettisoned space pack. (Ed White's glove has dropped out of orbit and burned up.)

What if all or part of an orbiting object falls to earth and harms either property or persons? Nobody has yet been hit by a piece of falling space hardware, although four years ago a 20-lb. piece of Sputnik 4 plunked down on a street in Manitowoc, Wis. (It was duly returned to the Russians after being analyzed.) Because of the inherently high velocity of any object in orbit, most pieces of space junk are consumed in their fiery plunge through the earth's atmosphere. But as man launches more and more satellites and probes--the Japanese are scheduled to loft their first satellite this week--the danger, however small, will obviously increase. The U.N. conferees have agreed that the launching nation should be liable for any damage inflicted by a satellite dropout, and both Russia and the U.S. have promised to accept liability without the customary court showing of negligence. In a related issue, they agreed that any downed astronauts should be treated as "envoys of mankind" and promptly returned to the nation that launched them.

-TALKING SATELLITES. Of all the objects now in space, those with the most dramatic potential for civilian use are communications satellites. How to handle them in the future is a problem so complex that the U.N. subcommittee has shied away from it. By 1969, the Communications Satellite Corp. will have five Early Birds in space, which will enable any single TV broadcast to blanket the globe, and within the next few years some 20 countries will have built stations to tune in on Comsat's broadcasts. Such prophets as RCA's David Sarnoff foresee the day when it will be possible to reach every home in every country by direct broadcast from a satellite. Not everyone, of course, can be expected to view this possibility with enthusiasm. The Russians would not like the idea of every dacha in the Ukraine receiving broadcasts from New York, nor would the U.S. wish to hear instant Communist propaganda broadcasts on Channel 14.

Some experts consider Sarnoff's approach too visionary, believe that for a long time to come Comsat will serve strictly as a telephone and telegraph conveyance that would only occasionally be used for broadcasting international events of overriding importance. Even so, some form of agreement will have to be reached, if only to settle quarrels that are already looming--over what fees Comsat can collect, what programs it should broadcast, who should own the ground stations that will relay them, and whether Comsat should retain its monopoly status.

-SPIES IN THE SKY. A different kind of "communications" satellite has already been widely used by both the U.S. and Russia. A considerable number of the U.S.'s orbiting objects are surveillance satellites that guard the U.S. against surprise attacks and provide constant watch over both Russian and Red Chinese territory. Since the U-2 flights over Russia were halted in 1960, the U.S. has had to depend heavily on its Samos, Ferret, Midas and Vela systems for vital intelligence about the Soviet Union. With those satellites, the U.S. has mapped and photographed Russia's missile sites and radar installations, followed the stages of nuclear progress in Red China, watched troop movements in both countries and eavesdropped on conversations at the Russian cosmodromes.

The Russians, who brusquely rejected President Eisenhower's "open skies" offer in 1955, loudly complained about these spies-in-the-skies when they were first launched in 1960. But a potentially sticky conflict over aerial espionage was averted when, a couple of years later, the Russians launched their own equivalent, the Cosmos, and fell silent. Last year alone they launched dozens of Cosmos satellites that passed over the U.S.

-MILITARY POTENTIAL. While the advantages of orbiting spies are obvious, the potential for the military use of space itself is less clear. The U.S. and Russia pledged to the U.N. in 1963, and reaffirmed in the present treaty draft, that neither would put nuclear bombs in orbit. They were moved partly by the knowledge that such bombs would pass over any target only at widely spaced intervals, would be easier to track than ICBMs and could be delivered at best in hardly less time than the 30 minutes needed for an ICBM. Even so, this detente is subject to constant strain; each nation has made clear that, in the event of any breach of the agreement, it could "kill" any bomb put up by the other.

The great military fear is that one nation might make technological advances that would enable it to deny the use of space to others. For this reason the U.S. is apprehensive about the expected launching, probably next year, of a Russian-manned space laboratory called the Proton--a huge, stable reconnaissance and surveillance "island in the sky" manned by relays of crews. The Proton may be the prototype of a command ship that could control whole fleets of spaceships capable of denying to the U.S. the "near space" between the atmosphere and the 600-mile-high Van Allen Belt. Washington's answer is its own Manned Orbiting Laboratory, a bus-sized vehicle scheduled to be launched in 1969 in which crews would live and work for a month at a time. In case Russia presses the challenge, the U.S. is experimenting with a laser weapon that has no recoil and therefore could be safely fired from a spacecraft.

Thus, whatever the Soviet Union does or plans to do, the U.S. must do or plan to do better. No one particularly welcomes this competitive prospect. One estimate of the ccst of countering a Russian effort at space denial and of assuring U.S. domination is a round $250 billion--and presumably it would cost the Russians just as much. While the U.S. and Russia may reach general agreement on many aspects of space exploration, the outlook for military uses of space is an expensive stalemate much like that now in effect on earth.

Probabilities of the Future

The problems of space law, while most ominous when they touch upon the military, nonetheless are so broad that space lawyers--a new but growing breed of specialists--have hardly begun to consider their ramifications. What happens, for example, if a civilian British scientist should kill an American or a Russian astronaut on the moon? Who would arrest whom, and what court of what country would have jurisdiction? Despite the fact that nations have forsworn territorial rights on celestial bodies, questions of property rights are bound to arise when exploration and interplanetary travel increase. The French have already raised one question: What happens if one nation establishes a mining camp en the moon and starts sending back valuable samples to the earth for analysis or exploitation? Is this an appropriation of international territory? Should some international organization be paid for mining rights? Who should license such projects, and how should the cost be deducted from any profits for tax purposes?

Insurance companies, whose business is to study the probabilities of the future, have so far declined to write policies for possible fires in possible homes of future moon dwellers on the grounds that there are no guiding statistics yet available. But one company did issue life insurance policies on the first seven astronauts, calculating their risk status as somewhat higher than a military jet pilot but less than a steeplejack. (The present astronauts, besides having group insurance through NASA, are also offered a travel accident insurance policy at the relatively low premium of $60 a year for $100,000.) The U.N. committee, intent on the bigger questions, is leaving such problems to be settled in the future.

Since every nation will invariably act to protect or advance its own interest when confronted with the problems of space, many space lawyers believe that the only effective way to control the exploration of space is to put it under some form of international control, much as the high seas are now covered by maritime law accepted by almost all nations. Space specialists are not Utopians; they recognize that man, not yet having succeeded in establishing the rule of law on his own planet, can be expected to carry many of his rivalries, prejudices and problems into outer space--along with his ideals. Their hope is that some human frailties, at least, will be modified in the face of the great challenge, vast expense and hostile environment that mark space exploration.

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