A major US defensive military tool in the space age is satelliteborne surveillance. The national-security significance of this American capability is underscored by the secrecy which has surrounded US implementation, while at the same time the annoying implications to the traditionally closed Soviet society have caused the Soviets to complain bitterly that US spaceborne surveillance amounts to espionage. Following is an analysis of the general US and USSR views of the international legal status of satellite surveillance.—The Editors
In this thermonuclear rocket age, the United States has insisted that a right to know of warlike preparations within a closed society like the Soviet Union is essential to the security and even the survival of the free world and is therefore a legal right. Since in the United States's view these systems are defensive only, they are justified even under the UN Charter, wherever placed. To this, Russia has objected on the grounds that since she will, in fact, never launch an aggression, any such system must itself be designed in reality for attack purposes and is itself aggressive. Moreover, in any event, Russia rejects the "use of artificial satellites for the collection of intelligence information in the territory" of a state as, under all circumstances, espionage and illegal wherever conducted. This latter crucial concept is certainly not clear in international law and may well not be at all applicable to many types of national peace-keeping warning systems. Those, for example, which collect data on incoming missiles from outside the potential aggressor's territory, however defined, would seem clearly more in the nature of self-defense than espionage activities. Like so many lines, of course, the conceptual division is by nature arbitrary and the law is never precise in the borderline case.
It would seem that, however traumatic, sincere peace-loving states can be expected to accept the general legality of essential peace-keeping activities in space and elsewhere, especially since it can be predicted that, when involved, all states will insist on a right to self-defense. The issues which are open to debate, to intellectual conflict, are therefore both conceptual, definitional, and organizational. They involve [questions of] which elements of information gathering can be included as peace keeping, which are "essential" in different likely circumstances, and who should perform them' each case.
At one extreme, a universal arms-control-and-inspection system, using satellites, would be legal and its information-gathering activities could not constitute espionage. Indeed, one of the most productive peaceful uses of space may well be information gathering for peace preservation, whether the systems are nationally or internationally directed. Unfortunately, we cannot objectively measure the intentions of nations. We cannot easily devise methods of refuting an allegation that information is being gathered in good faith solely in an effort to keep the peace. Worse yet, information useful for this purpose is also useful if peace is lost. This has never stopped, and cannot stop, all nations from collecting such information as they need to keep the peace or to preserve their existence in wartime and, hence, this cannot under all circumstances be held to be internationally illegal.
There is thus a possible, admittedly arbitrary, distinction that one can make. Space activities which are very productive in peacetime—meteorological and navigation systems, for example—can be usefully considered basically peaceful space activities even if there is also a military or observation potential. The category would also include information gathering of the stabilizing, peacekeeping type. Since, in a general war, no obligations which conflict fundamentally with survival will be uniformly honored, other rules would have to apply. For a limited war, insofar as peace-keeping activities, which would become more important than ever, are to be pursued, an international administration of information-gathering activities might be especially creative.
Our third category of observation systems, those used specifically for targeting and other military fact-finding missions, have been claimed as legal by the United States as well. To self-defense, there is added the additional claim that their location in outer space, outside the territorial sovereignty of any state, permits their characterization as legal. This represents an implied support to the illegality of such surveillance elsewhere, notably in national airspace, which the United States still continues to support in some parts of the globe—a tactical and legal position one could question, but not here. Such surveillance activities in space are characterized as military but defensive and hence not aggressive and do not, in the American view, in any sense run afoul of the principles of the United Nations Charter. It is equated with observation from the "free" high seas, or "free" airspace, or from friendly countries which we consider permissible in law.
Here, too, the Soviet Union takes exception. Observation for any nonaggressive purpose from outer space is then permissible in the American view and, indeed, at least at one time [former Deputy Secretary of Defense, the late Donald] Quarles asserted that the United States would not object to Soviet surveillance satellites. It is not permissible in the Russian view which in turn claims that it is espionage and that espionage (though universally practiced) is an international wrong, constituting interference in a state's internal affairs and hence illegal both under general and Charter law. There is, thus at present, an important political conflict over claimed legal rights to utilize some of the most important potentials of space. It is a political conflict for no other reason than that on these matters in space the applicable law has yet to be made and formalized, perhaps after space is defined for these purposes.
Howard J. Taubenfeld is Professor of Law, Southern Methodist University, currently on leave as Visiting Research Scholar, Carnegie Endowment for International Peace, New York City. A specialist in international law, he is coauthor of Controls for Outer Space and the Antarctic Analogy, Columbia University Press, 1959. The above article is excerpted from a longer presentation by Professor Taubenfeld at a Carnegie Endowment-sponsored Space Problems Seminar held in the spring of 1963 in New York City.
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