1 U.S. Senate, Foreign Relations Committee, Events relating to the Summit Conference, 86th Cong., 2nd Sess., Report No. 1761, June 28, 1960 (hereafter cited as Report), p. 23.

2 Ibid. 22, citing testimony of Secretary Herter (p. 6). Although the Committee published no direct evidence that flights had previously been canceled for diplomatic reasons, “unpublished portions of the record … indicate that the flights were in fact suspended on occasion” (p. 7), and Chalmers Roberts, a Washington Post reporter, stated that during the Suez crisis of 1956: ‘ ‘ The President did order a halt to U-2 nights … apparently to avoid an incident -which would make negotiation difficult.” Washington Post, May 27, 1960, p. 18, col. 1.

3 The Senate Foreign Relations Committee found that “little, if any, consideration was given to the proximity of May 1 to the date of the summit conference” (Report 22), but according to Chalmers Roberts, Central Intelligence Agency officials thought “there was to be a cut-off of U-2 flights before the Summit” and that the issue was “how much time constituted a margin of safety” ﹛loo. cit. note 2 above). In his telecast of May 25, 1960, President Eisenhower said: “When a nation needs intelligence activity, there is no time when vigilance can be relaxed. Incidentally from Pearl Harbor we learned that even negotiation itself can be used to conceal preparations for a surprise attack.” 42 Dept. of State Bulletin 900 (1960). Senator Wiley thought that approval of the general program of flights by high officials in Washington indicated that they had fully considered the possible effects of discovery upon the Summit Conference, that the decision to permit the flight was wise, and that the unfortunate consequences were “just plain bad luck.” Report 22, 32.

4 Ibid. 22, 25. Republican Senator Wiley considered these two statements in the Committee Report inconsistent (ibid. 32). He was joined by Democratic Senator Lausche and the other Republican members of the Committee, who approved the report prepared by Democratic Senator William J. Fulbright, Chairman of the Foreign Relations Committee, in a summary, softening its criticisms of the Administration. Republican Senator Capehart opposed the Report.

5 Report 11. The Dept. of State Bulletin (May 23, 1960, Vol. 42, pp. 816 ff.) prints the NASA releases but not this State Department statement. Secretary Herter told the Senate Committee that this ‘ ‘ categorical statement may have begun to complicate the situation.” In his telecast of May 25, President Eisenhower said these “covering statements” were “issued to protect the pilot, his mission, and our intelligence processes, at a time when the true facts were still undetermined“; but “when later the status of the pilot was definitely established and there was no further possibility of avoiding exposure of the project, the factual details were set f o r t h . “ (42 Dept. of State Bulletin 900 (June 6, I960).) Vice President Nixon, in a telecast of May 15, said he “endorsed the U-2 reconnaissance policy,” and “knew about this flight.” He justified the “evasive action by the State Department,” which he admitted subsequent events had shown was “ wrong , “ by the necessity to respond to the legitimate insistence of the press and the ignorance of the State Department on how much Khrushchev really knew. New York Times, May 16, 1960.

6 42 Dept. of State Bulletin 818 (May 23, 1960); Report 11.

7 Chalmers Roberts, loc, cit., note 2 above; Walter Lippmann, New York Herald Tribune, May 10, 1960; Report 24.

8 42 Dept. of State Bulletin 816 (May 23, 1960); Report 12, 25.

9 42 Dept. of State Bulletin 851-852 (1960).

10 President DeGaulle believed this was a position from which Khrushchev could not depart while in Paris, and so alarmed Secretary of Defense Gates that he cabled Washington “requesting a quiet increase of command readiness,” although he told the Senate Committee that he had no information of Soviet mobilization nor apprehension of surprise attack anywhere in the world. Nobody in Paris, either Americans or Allies, seems to have suggested acceptance of these demands. Report 14-15.

11 4 2 Dept. of State Bulletin 901 (June 6, 1960). In his statement in Paris on May 16, the President, in reporting his interview with Khrushchev, said: “ In point of fact these flights were suspended after the recent incident and are not to be resumed. Accordingly this cannot be the issue” ﹛ibid,. 905). Secretary Herter told the Foreign Relations Committee on May 27, 1960: “Since the U-2 system had been compromised, it was discontinued as any other intelligence mission would be in a such a case. Announcement of its discontinuance was withheld until the President could convey the fact personally in Paris . “ 42 Dept. of State Bulletin 950 ff. (1960); Report 3, 14.

12 See text of Khrushchev's statement at the Summit meeting, May 16 (New York Times, May 17); the official text of his statement to newsmen issued by the Soviet Embassy in Paris on May 17, 1960 (ibid., May 18, 1960); and statement by President Eisenhower, May 16 (42 Dept. of State Bulletin 905 (I960)). In his telecast on May 25 (ibid., June 6, 1960, p. 901), President Eisenhower said: “ I replied by advising the Soviet leader that I had during the previous week stopped these flights and that they would not be resumed. I offered, also, to discuss the matter with him in private meetings while the regular business of the Summit might proceed. Obviously, I would not respond to his extreme demands. He knew, of course, by holding to those demands the Soviet Union was scuttling the Summit Conference.” In his report in Moscow on May 28, Khrushchev said: “We expected the President of the United States, whom DeGaulle and MacMillan had informed of our position, would take steps paving the way to a Summit meeting or at least would try to have an explanation with us … And yet Eisenhower did not avail himself of this opportunity offered him. He even did not express any desire to meet me. Therefore, I was very much astonished by the fact that in his speech on May 25, Eisenhower reproached me for not having wished to meet him. The question arises: who should have taken the initiative under these conditions It is clear to everyone that it should have been done by the person who broke the good relations which began taking shape between our countries.” New York Times, May 29, 1960, p. 18.

13 Report 24.

14 United Nations Review, June, 1960, p. 1; July, 1960, pp. 6-7, 38-43. Ambassador Lodge's speeches and the texts of the resolutions are printed in 42 Dept. of State Bulletin 995 ff. (1960).

15 This argument, which is hardly consistent with the persistent refusal of the Soviet Union to submit to any form of third-party adjudication, especially on airplane incidents, appeared in the New York Times report (May 24, 1960, p. 14, col. 8), but not in the summary of Gromkyo's remarks in the United Nations Review, July, 1960, p. 44.

16 U.N. Review, July, 1960, pp. 8-9, 48-50; 42 Dept. of State Bulletin 961 (1960). The final text of Art. 2 of the resolution, which, though merely affirming Charter principles, refers by implication to the TJ-2 incident, reads: “The Security Council … 2. Appeals to all member governments to refrain from the use or threats of force in their international relations; to respect each other's sovereignty, territorial integrity, and political independence; and to refrain from any action which might increase tensions.” In the Security Council July 22, 1960, the Soviet representative charged that the United States had ignored this resolution in the incident of the EB-47, shot down over Barents Sea on July 1, 1960, fifty miles from shore, according to the United States. New York Times, July 23, 1960, p. 2.

17 2 Moore, Digest of International Law 362-428; 2 Hackworth, Digest of International Law 282-334. For cases of liability for injuries in a state's territory resulting from negligence in restraining injurious agencies, see 2 Moore 428 ff.; 2 Hackworth 334, ff.; and for cases of liability without fault, see Trail Smelter Case, 2 Hackworth 344 ff.; Jessup, Philip C. and Taubenfeld, Howard J., Controls for Outer Space 243, 347 (New York, 1959).Google Scholar

18 U.S. Department of State, Establishment of Diplomatic Relations with the Union of Soviet Socialist Republics 6-7 (Washington, 1948); Hackworth, 1 op. cit. 304.

19 See Art. 1 of each of these conventions. For the contracting states, the Chicago Convention supersedes the others. Manley O. Hudson, ed., International Legislation, Vol. I, p. 361; Vol. 4, p. 2355; Vol. 9, p. 168.

20 '’ Aircraft used in military, customs, and police service shall be deemed to be state aircraft. No state aircraft of a contracting state shall fly over the territory of another state or land thereon without authorization by special agreement or otherwise and in accordance with the terms thereof.” Chicago Convention, Art. 3, loc. cit.

21 Lissitzyn, Oliver J., “ The Treatment of Aerial Intruders in Recent Practice and International Law,” 49 A.J.I.L. 559 ff. (1953).Google Scholar

22 “ A military enterprise (distinguished from a ‘military expedition’) … includes various undertakings (such as espionage) by single individuals.” Augustus Hand, J., U.S. v. Sander, 241 Fed. 417, 419 (1917); 7 Hackworth, op. cit. 399.

23 Harvard Research in International Law, Rights and Duties of States in Case of Aggression (Philip Jessup, Reporter), Art. I (c), 33 A.J.I.L. Supp. 847 (1939); Wright, Quincy, “The Prevention of Aggression,” 50 A.J.I.L. 519 ff. (1956).Google Scholar The Convention Defining Aggression, made by the Soviet Union with eight of its neighbors in 1933, confined “aggression” to military or naval action or action by “armed bands” supported or tolerated by the government against another state (Briggs, Herbert W., The Law of Nations 969 (2nd ed., New York, 1952)Google Scholar, note 28 below); but its proposal of 1956 included “ indirect , “ “economic” and “ideological” aggression (Julius Stone, Aggression and “World Order 201 (1958)).

24 See regulations forbidding overflights and threatening to bring intruding aircraft down by U.S. with reference to Panama Canal Zone, Nov. 13, 1914; by Switzerland, Aug. 4 and 10, 1914 (Naval War College, International Law Topics, 1916, pp. 73, 77, 99); by Norway, Nov. 6, 1914 (ibid., 1917, p. 192) ; Jessup and Taubenfeld, op. cit.

25 See note 19 above.

26 Cooper, John C., “ Legal Problems of Upper Space,'’ 1956 A.S.I.L. Proceedings, 85 ff.Google Scholar; Soviet jurist Korovin, “International Status of Cosmic Space,” International Affairs (Moscow), January, 1959, pp. 53 ff.; Jessup and Taubenfeld, op. cit. 220. While recognizing that the airspace has limits, government officials have hesitated to define them. Ibid. 213 ff.

27 42 Dept. of State Bulletin 816 (1960).

28 Formulation by Secretary of State Daniel Webster in the Caroline incident, 2 Moore, op. cit. 412. See also Briggs, op. cit. 984 ff.

29 Naulilaa Case (Portugal v. Germany), 1928, Briggs, op. cit. 951.

29 a See note 23 above. Julius Stone (op. cit.) argues for a more restrictive interpretation of the U.N. Charter.

30 Judge Hudson formulated this principle as follows: ‘’ Where two parties have assumed an identical reciprocal obligation, one party which is engaged in a continuous non-performance of the obligation should not be permitted to take advantage of a similar non-performance of the obligation by the other party.'’ P.C.I.J., Ser. A/B, No. 70, p. 77; Hudson (ed.), World Court Reports 252.

31 The United States declared Soviet diplomat Yezhov persona non grata on this ground on July 22, 1960. New York Times, July 23, 1960, p. 1.

32 IV Hague Convention, 1907, Arts. 29-31; U. S. Eules of Land Warfare, Basic Meld Manual (F.M.27-10, 1940), Arts. 202 ff.; 3 Hyde, International Law 1862 ff. (2nd ed., Boston, 1945).

33 IV Hague Convention, 1907, Arts. 1, 2; Geneva Convention on Prisoners of War, 1949, Art. 4, 47 A.J.I.L. Supp. 120 (1953).

34 Note 31 above. A dozen Soviet diplomatic officials have been dismissed by the United States for engaging in subversive activity (New York Times, July 23, 1960, p. 2), and, while neutral in “World War I, the United States dismissed the Austro- Hungarian Ambassador and officials in the German Embassy engaged in such activity (4 Hackworth, op. cit. 447 ff.).

35 Report 12, 24.

36 Trial of Major War Criminals before the International Military Tribunal, Nuremberg, 1947, Vol. 1, pp. 312, 317; Wright, Quincy, “ The Law of the Nuremberg Trial,” 41 A.J.I.L. 60 (1947).Google Scholar

37 Notes 17, 22 above.

38 Note 28 above.

39 Note 24 above; Lissitzyn, loc. cit. note 21 above.

40 Notes 32, 33 above.

41 In the debate in the Security Council, Ambassador Lodge cited eleven cases in which Soviet spies had been unmasked in the United States since the death of Stalin and said that there had been 360 convictions of Bussian espionage agents in courts of free world countries representing only a minor proportion of those cases in which Soviet espionage activity had been actually involved. The Nuremberg Charter recognized that the act of state doctrine could not protect an individual in an act which his state was forbidden by international law to authorize (note 36 above; Wright, Quincy, “War Criminals,” 39 A.J.I.L. 26 ff. (1945)Google Scholar). Werner Horn, acting under authority of Germany, was convicted in the United States for engaging in sabotage during the period of American neutrality in World War I. Horn v. Mitchell, 223 Fed. 549 (1915) ; 232 Fed. 819 (1916); 4 Hackworth 407; 1 Hyde, International Law 733, 822. Immunities of foreign armed forces from local jurisdiction, assumed in the case of Alexander McLeod (The Caroline case, note 28 above), depend upon the legitimacy of the presence of such forces, whether by agreement of the local government or in necessary self-defense.

42 Notes 23, 28, 38 above.

43 Note 17 above; Stowell, Ellery, Intervention in International Law 13 ff. (Washington, 1916)Google Scholar; id., International Law 569 ff. (New York, 1931).

44 2 Moore, op. cit. 411. British Minister Lord Ashburton's apology of July 28, 1842, and Secretary of State Daniel Webster's acceptance of it on Aug. 6, 1842, provide a model for the amicable settlement of serious territorial violations, in this case characterized as an “ act of war “ by former President John Quincy Adams. President Tyler, in his message of Aug. 11, 1842, said: “ The letter of the British Minister, while he attempts to justify that violation upon the ground of a pressing and overruling it, and accompanying this acknowledgement with assurances of the warm regard of his government for the inviolability of national territory, has seemed to me sufficient to warrant forbearance from any further remonstrance against what took place, as an aggression on the soil and territory of this country.” Ibid. 413.

45 States are bound to observe international law and treaties; consequently a declaration of intent to do so is clearly within the President's power to represent the United States, and his responsibility “ to take care that the laws be faithfully executed,” and binds the United States, not merely the President who makes it. See Wright, Quincy, The Control of American Foreign Relations 21, 192, 235, 243 (New York, 1922)Google Scholar; id., “The United States and International Agreements,” 38 A.J.I.L. 344 ff. (1944).

46 IV Hague Convention, 1907, Arts. 2, 3, 24; U.S. Rules of Land Warfare, Arts. 24 (e), 38-40; 6 Hackworth 175, 182; 2 Oppenheim, International Law, sees. 165, 211; 3 Hyde, op. cit. 1810, 2001.

47 5 Moore, op. cit. 183-184; Harvard Research in International Law, The Law of Treaties (James W. Garner, Reporter), Art. 31, 29 A.J.I.L. Supp. 1144 ff. (1935); McNair, Arnold D., The Law of Treaties 131 ff. (New York, 1938).Google Scholar

48 42 Dept. of State Bulletin 816 (1960).

48 a U.S.Rules of Land Warfare, Art. 39, notes 46, 47 above.

49 Note 5 above.

50 The Economist, May 28, 1960, p. 842.

51 Most of these matters were considered by the Senate Foreign Relations Committee. See also General Telford Taylor, “Long Run Lessons of the U-2 Affair,” New York Times Magazine, July 24, 1960, pp. 20 ff.; James P. Warburg, “After the Summit: Where Do We Go from Here”, Address, World Affairs Council, Philadelphia, June 8, 1960; Walter Lippmann, Comments, New York Herald Tribune, May 10, 12, 19, 1960; Pearson, Lester B., “After the Paris Debacle,” 38 Foreign Affairs 537 ff. (July, 1960)Google Scholar; Salisbury, Harrison E., “U. S. and U.S.S.R.: The Dangers Ahead,” 39 Foreign Policy Bulletin 145 ff. (June 15, 1960).Google Scholar