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 Organization (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 playa 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 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
- ↑ 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.
- ↑ 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).
- ↑ 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.
