¹ See Woetzel, , “Comments on U.S. and Soviet Viewpoints Regarding the Legal Aspects of Military Uses of Space,” in Proceedings of the American Society of International Law, 1963, at 195, 196.Google Scholar

² The United States proposed in the First Committee of the General Assembly that an initial step “toward the objective of assuring that future developments in outer space would be devoted exclusively to peaceful and scientific purposes would be to bring the testing of such objects [‘earth satellites,’ ‘intercontinental missiles,’ ‘long-range unmanned weapons’ and ‘space platforms’] under international inspection and participation. In this matter, as in other matters, the United States are ready to participate in fair, balanced, reliable systems of control.” UN Doc. A/C. 1/783 of January 12, 1957. U.S. Dept. of State, Documents on Disarmament 1945–59, Vol. II, at 731, 733.

³ News Conference remarks regarding outer space, January 16, 1958. Dept. State Bull., 166–67 (1958). U.S. Dept. of State, Documents on Disarmament 1945–59, Vol. II, at 941, 943.

⁴ See McDougal, M. S., Lasswell, H.D., and Vlasic, I.A., Law and Public Order in Space, 394 ff. (New Haven, 1963).Google Scholar

⁵ For a discussion of such activities, see ibid., 370–83. See also Brennan, , “Arms and Arms Control in Outer Space,” in Outer Space: Prospects for Man and Society 129–41 (American Assembly, Columbia University, 1962).Google Scholar

⁶ For a discussion see op. cit. supra note 4, at 387–90 and authorities therein cited.

⁷ Meeker, L.C., “Observation in Space,” in Law and Politics in Space 82 (McGill University Press, 1964)Google Scholar (ed. M. Cohen). (Proceedings of the First McGill Conference on the Law of Outer Space, April 12–13, 1963.)

⁸ U.S. Dept. of State, Documents on Disarmament 1945–59, Vol. II, at 941–42.

⁹ See Taubenfeld, , “The Status of Competing Claims to Use Outer Space: An American Point of View,” Proceedings of the American Society of International Law, 1963, at 173, 181.Google Scholar Taubenfeld suggests (p. 174), that it would be possible to define space so as not to include those lower reaches through which missiles briefly pass.

¹⁰ Gotlieb, , Disarmament and International Law 47–49 (Toronto, 1965).Google Scholar

¹¹ Canada Treaty Series, 1964 No. 1, Canadian Instruments of Ratification deposited January 28, 1964.

¹² (Italics supplied.) UN Doc. DG/SC.1/66 of Aug. 29, 1957 in Fifth Report of Sub-committee of the Disarmament Commission (DC/113), Annex 5. U.S. Dept. of State, Documents on Disarmament 1945–59, Vol. II, at 868, 871.

¹³ Statement at 866th meeting of First Committee of General Assembly, October 10, 1957. GA Off. Recs. 12th session, 1957, First Committee, 7. Verbatim text appears in U.S. Dept. of State, Documents on Disarmament 1945–59, Vol. II, at 893, 901.

¹⁴ Resolution 1148 (XII) of Nov. 14, 1957. GA Off. Recs. 12th session, supp. 18, at 3–4 (A/3805). A similar proposal was also advanced by the United States at the Assembly in 1958. See statement of U.S. representative First Committee, Oct. 10, 1958, at 945th meeting. GA Off. Recs. 13th session, First Committee, 14. Verbatim text in U.S. Dept. of State, Documents on Disarmament 1945–59, Vol. II, at 1146, 1151.

¹⁵ Dept. State Bull. 122, 126 (1958). U.S. Dept. of State, Documents on Disarmament 1945–59, Vol. II, at 932, 938–39.

^l6 In a memorandum of March 15, 1958 entitled “Soviet Proposal on the Question of the Banning of the Use of Cosmic Space for Military Purposes, the Elimination of Foreign Military Bases on the Territories of Other Countries, and International Co-operation in the Study of Cosmic Space.” UN Doc. A/3818, March 17, 1958. See GA Off. Recs. 13th session, annexes, agenda item 60, at 1. U.S. Dept. of State, Documents on Disarmament 1945–59, Vol. II, at 973.

¹⁷ Memorandum on Measures in the Field of Disarmament of Sept. 18, 1958. UN Doc. A/3929, Sept. 22, 1958. U.S. Dept. of State, Documents on Disarmament 1945–59, Vol. II, at 1132–42.

¹⁸ UN Doc. A/4219, Sept. 19, 1959. U.S. Dept. of State, Documents on Disarmament 1945–59, Vol. II, at 1460–74.

¹⁹ TNCD/3, Stage I, Sec. F(i) March 16, 1960. See Verbatim Records of the Meetings of the Ten Power Disarmament Committee, 921, H.M.S.O. Cmnd. 1152, 1960. The prohibition was to take effect on the “successful completion” of the preparatory study and after “installation and effective operation of an agreed control system to verify this measure.” See Stage II(A) of TNCD/3.

²⁰ This forum was agreed upon by the U.S.S.R., United States, United Kingdom and France at the Foreign Ministers’ Conference in Geneva in August 1959. See Joint Announcement by Government of France, United Kingdom, United States and U.S.S.R. Sept. 7, 1959, reproduced in Verbatim Records of Meetings of the Ten Nation Disarmament Committee, 906, H.M.S.O. Cmnd. 1152, 1960.

²¹ UN Doc. A/C.i/PV. 955, Oct. 20, 1958, at 2–31. See GA. Off. Recs. 13th session, 955th meeting of First Committee, 65. U.S. Dept. of State, Documents on Disarmament 1945–59, Vol. II, at 1186, 1195.

²² TNCD/3, Stage I, Sec. F(2), March 16, 1960.

²³ Basic Provisions of a Treaty on General and Complete Disarmament, TNCD/6/Rev. 1, June 7, 1960. Verbatim Records of Ten Power Disarmament Committee, 925–32.

²⁴ Ibid., Stage I, para. 3.

²⁵ TNCD/7, June 27, 1960, Verbatim Records, 933–36.

²⁶ Ibid., Stage I (2).

²⁷ Ibid., Stage I (3).

²⁸ Ibid., Stage I (4).

²⁹ The five communist members withdrew at the same meeting that the comprehensive Western disarmament plan was tabled; this marked the end of the conference.

³⁰ GA Res. 1348 (XIII) of Dec. 13, 1958. GA Off. Recs. 13th session, supp. 18, at 5–6 (A/4090).

³¹ GA Res. 1472 (XIV) of Dec. 12, 1959. GA Off. Recs. 14th session, supp. 16, at 5–6 (A/4354).

³² Pursuant to resolution 1721 (XVI) of Dec. 20, 1961. GA Off. Recs. 16th session, supp. 17, at 6–7 (A/5100).

³³ U.S. Memorandum of Sept. 2, 1958 (A/3902). See GA Off. Recs. 13th session, annexes. Agenda item 60, at 4. See U.S. Dept. of State, Documents on Disarmament 1945–59, Vol. II, at 941, footnote 1. The Soviet representative agreed with this general approach. See GA Off. Recs. 13 th session, First Committee, 989th meeting, Nov. 18, 1958, at 218.

³⁴ See references in supra note 33 and statement of U.S.S.R. delegate at 1342nd meeting of First Committee. A/C.1/PV 1342, Dec. 2, 1963, at 41–42.

³⁵ For an account of the UAR position, see statement of UAR delegate, 1342nd meeting of First Committee, A/C.i/PV 1342, Dec. 2, 1963, at 57–65. The UAR submitted to the Outer Space Committee on Sept. 14, 1963 a draft code proposing to confine outer space to peaceful purposes. See A/C.i/PV 1342, at 61. For an account of the Indian position that the principle should be accepted that outer space should be kept free from military use, see statement of Indian delegate at 1343rd meeting of the First Committee, A/C.i/PV 1343, Dec. 3, 1963, at 17.

³⁶ GA Res. 1721 (A) (XVI) of Dec. 20, 1961, part A(i) (a) and (b). GA Off. Recs. 16th session, supp. 17, at 6 (A/5100).

³⁷ GA Res. 1721 (A) (XVI) of Dec. 20, 1961, like the two earlier Assembly resolutions, asked the Committee to study and report on the legal problems which might arise from the exploration and use of outer space.

³⁸ See UN Doc. A/5181 of Sept. 27, 1962, Annex III (previously issued as A/AC.105/L.2).

³⁹ Ibid, para. 5.

⁴⁰ For text of draft declaration in Committee of the Whole see ENDC/C.1/20 of May 25. For a brief account see Whitton, and Larson, , Propaganda: Towards Disarmament in the War of Words 235 ff. (New York, 1964).Google Scholar

⁴¹ Op. cit. supra note 38, para. 8.

⁴² Zhukov, , “The Problem of Outer Space Qualifications,” Proceedings of the American Society of International Law, 1963, at 193, 195.Google Scholar

⁴³ Statement by U.S. representative, Senator Gore, in the General Assembly, First Committee, 17th session, Dec. 3, 1962.

⁴⁴ Meeker, op. cit. supra note 7, at 76.

⁴⁵ Op. cit. supra note 38, para. 6.

⁴⁶ See A/AC/105 of July 9, 1962 (Report of Legal Sub-Committee on the work of its first session, May 28-June 20, 1962; A/AC/105/C.2/1 of June 3, 1962; A/AC/105/C.2/SR4 (meeting of June 3, 1962) and A/-AC/105/C.2/SR7 (meeting of June 7, 1962).

⁴⁷ See statement of U.S. representative cited supra note 43.

⁴⁸ See A/5549 of Sept. 24, 1963, at 9.

⁴⁹ Ibid., Annex G.

⁵⁰ See GA Off. Recs. 18th session, (GA Off. Recs. supp. 15, at 15–16, A/5515).

⁵¹ See U.S. statement in First Committee at 1342nd meeting A/C.i/PV 1342, at 12 and Soviet delegate’s statement at the same meeting, appearing at 42. See also A/C. i/SR. 1342, at 159 and 161. For a thorough discussion of the legal effects of these and other statements made in the General Assembly in connection with the adoption of Resolutions 1721 A (XVI) and 1962 (XVIII) and for discussion of these Resolutions, see Cheng, B., “United Nations Resolutions on Outer Space: ‘Instant’ International Customary Law?,” (1965) 5 Indian J. Int’l L. 23, et seq.Google Scholar

⁵² For some references to such statements see supra note 35.

⁵³ 110(H) of Nov. 3, 1947, UNGA Off. Recs. 3rd session, A/519, at 114.

⁵⁴ Op. cit. supra note 50, para. 6.

⁵⁵ Paras. 2, 3 and 4 of the Declaration.

⁵⁶ GA Off. Recs. 18th session, supp. 15, at 16–17 (A/5515).

⁵⁷ See Reports of the Legal Sub-Committee on the work of its third session (March 9–36, 1964) A/AC/105/19 of March 26, 1964, and on the second part of its third session (October 5–23, 1964) A/AC/105/21 of October 23, 1964.

⁵⁸ The composition of this Committee was endorsed by the Assembly in Res. 1722 (XVI) of Dec. 20, 1961. GA Off. Recs. 16th session (supp. no. 17, at 7–8, A/5100).

⁵⁹ For a discussion of terminology see Feld, Bernard T., “Inspection Techniques of Arms Control,” in Arms Control, Disarmament and National Security 320 (ed. Brennan, ; New York, 1961).Google Scholar

⁶⁰ The Joint Statement of Agreed Principles for Disarmament Negotiations, worked out between the United States and U.S.S.R. in the autumn of 1961 and endorsed by the Assembly in Res. 1722 (XVI) as the basis for disarmament negotiations, provided that the disarmament programme should include “elimination of all means of delivery of weapons of mass destruction.” (A/4879 of Sept. 20, 1961).

⁶¹ The U.S. disarmament plan is contained in a document entitled “Outline of Basic Provisions of a Treaty on General and Complete Disarmament in a Peaceful World,” ENDC/30 of April 18, as amended in ENDC/30/Add. 1 and 2 of Aug. 6 and 8, 1962. For an exposition of the U.S. articles on outer space, see ENDC/PV.36 at 8–14, May 14, 1962.

⁶² The U.S.S.R. Revised Draft Treaty on General and Complete Disarmament under Strict International Control is contained in ENDC/2/Rev.i of Nov. 26, 1962, as revised in ENDC/2/Rev.1/Add.1 of Feb. 4, 1964.

⁶³ Inspection of all rockets launched for peaceful purposes was provided for in Article 15 of the Soviet Revised Draft Treaty.

⁶⁴ GA Res. 1721(B) (XVI) of Dec. 20, 1961 (GA Off. Recs., supp. 17, A/5100) called upon states to register with the Secretary-General objects launched into orbit or beyond, after the launching had taken place.

⁶⁵ Article 15 of the original Soviet Draft Treaty (ENDC/a of March 19, 1962) provided that “the launching of rockets and space devices shall be carried out exclusively for peaceful purposes.” As noted above, in the original U.S.S.R. plan, all missiles were to be destroyed in Stage I, whereas in the United States plan all missiles were to be destroyed by percentages over the three stages of the disarmament process (30 per cent in Stage I and 35 per cent in Stages II and III). However, the Soviet Union revised its plan to provide for the retention of a strictly limited number of intercontinental missiles, anti-missile missiles, and anti-aircraft missiles in the ground-to-air category until the end of Stage II (ENDC/2/Rev.i of Nov. 26, 1962), and, under a second revision, until the end of Stage III of the disarmament process (revised Gromyko proposal (ENDC/2/Rev.i/Add.i of Feb. 4, 1964) ). But the Soviet Union did not amend Article 15 of its Treaty. The interpretation would have to be made that, under the Soviet plan, any missile launchings by a state retaining the minimum nuclear deterrent would be for “peaceful purposes.”

⁶⁶ See ENDC/G.1/PV.1, at 27–9, March 28, 1962. The same proposal was advanced a day earlier in plenary session. See ENDC/PV.10, at 23–5, March 27, 1962.

⁶⁷ ENDC/G.1/PV.1, at 28, March 28, 1962.

⁶⁸ ENDG/G.1/2 of April 2, 1962.

⁶⁹ See ENDC/10, at 28 (March 27, 1962). See also statement of Swedish representative, ENDC/PV.5 of March 20, 1962, at 21.

⁷⁰ The Mexican draft treaty is contained in ENDC/98 of June si, 1963.

⁷¹ For statement by the Indian representative see ENDC/PV.37 of May 15, 1962, at 13–18. For statement of Canadian representative supporting Indian suggestion that the Co-Chairmen draw up an agreed article on the subject, see ENDC/40 of May 21, 1962, at 37–8. For a discussion of Conference procedures on the drafting of treaty articles, see Gotlieb, , Disarmament and International Law 49–50 (Toronto, 1965).Google Scholar

⁷² See statement of U.S.S.R. representative, Mr. Zorin, in ENDC/PV.37 of May 15, 1962, at 24–30.

⁷³ See statement of Mr. Zorin, ibid.

⁷⁴ On July 24, 1962, the Co-Chairmen drew up an agenda for further work on the first stage of a disarmament treaty; its eighth item was “measures on the use of outer space for peaceful purposes only, together with appropriate control measures.” (ENDC/i/Add.3 of July 24, 1962). The Conference has not taken up this item.

⁷⁵ ENDC/100/Rev.i of July 30, 1962, and reference cited supra note 11.

⁷⁶ ENDC/97 of June so, 1963; T.I.A.S. 5362.

⁷⁷ Res. 1884 (XVIII) of Oct. 17, 1963. GA Off. Recs. 18th session, supp. 15, at 13 (A/5515).

⁷⁸ See A/C.1/PV. 131 j of Oct. 16, 1963, at 5–6. (Statement of U.S. representative, Mr. Stevenson, quoting Mr. Gilpatric, in the First Committee of the General Assembly.)

⁷⁹ This statement appears in McNaughton, John T., “Space Technology and Arms Control,” op. cit. supra note 7, at 66.Google Scholar For a Soviet statement indicating a similar assessment of the lack of significant military value of placing nuclear weapons in orbit, see comments of Marshall Sokolovsky reported in New York Times, February 18, 1965, at 6.

⁸⁰ New York Times, Sept. 17, 1964, at 1.

⁸¹ Statement by Mr. Gromyko in the General Assembly, Sept. 19, 1963, A/PV. 1208, Sept. 19, 1963, at 83–5, and by President Kennedy on Sept. 20, 1963, in the General Assembly (A/PV.1209, Sept. 20, 1963, at 26).

⁸² See A/C.1/PV.1310 of October 15, 1963, at 58–62.

⁸³ A/C.1/L.324.

⁸⁴ A/C.1/PV.1311 of October 16, 1963, at 6.

⁸⁵ Ibid., 3–5.

⁸⁶ Ibid., 6.

⁸⁷ A/PV.1244 of October 17, 1963, at 6.

⁸⁸ A/5571. The Rapporteur was the representative of Costa Rica.

⁸⁹ A/PV.1244 of October 17, 1963, at 8–10.

⁹⁰ See A/C.1/PV.1311 of October 16, 1963.

⁹¹ See T.I.A.S. 4780, effective June 23, 1961.

⁹² See supra note 11.

⁹³ For references see supra note 76.

⁹⁴ See, for example, Fisher, , “Constructing Rules that Affect Governments,” in Arms Control, Disarmament and National Security 64. (ed. Brennan, ; New York, 1961).Google Scholar See also Schelling, “Reciprocal Measures for Arms Stabilization,” id. at 168. For an analysis by a U.S. Assistant Secretary of Defence, see McNaughton, in “Arms Restraint in Military Decisions,” VII Journal of Conflict Resolution, 328, 234 (1962).Google Scholar

⁹⁵ Fisher, op. cit. supra note 94, at 64.

⁹⁶ See ENDC/PV. 185 and ENDC/131 and ENDC/132 all of April 21, 1964. In the Geneva Disarmament Conference on April 21, 1964, the representatives of the U.S. and U.S.S.R. announced the decision of each of their respective governments to make reductions in the production of fissionable material. For details, see Gotlieb, , Disarmament and International Law 82, 83 (Toronto, 1965).Google Scholar

⁹⁷ See, for example, statements of Burmese and Soviet representatives at the Eighteen-Nation Committee, ENDC/PV. 161, at 6 and ENDC/PV. 166, at 35, Feb. 13, 1964.

⁹⁸ U.S.S.R. memorandum on measures for the further reduction of international tension and limitation of the arms race (A/5827, Dec. 7, 1964).

⁹⁹ Report of ILC to UNGA for 196a (A/saog), reproduced in the ILC Yearbook, 1962, Vol. II, at 158–97.

¹⁰⁰ Ibid., Article 1(a) (definition of “treaty” ) and 1(b) (definition of “treaty in simplified form”).

¹⁰¹ Ibid., 163, Article I, paragraph 10 of commentary. As McNair pointed out before the main phase of the Commission’s work on treaties began: “It is … highly inconvenient to include an oral agreement within the scope of the term ’treaty’, because all or nearly all the relevant material — judgements and awards, diplomatic dispatches and textbooks — from which the very considerable body of law relating to treaties has already been developed, presupposes a written instrument of some kind; great difficulty would arise from any attempt to apply that body of law to agreements made by word of mouth” : Law of Treaties 7 (Oxford, 1961).

¹⁰² Ibid., 163, Article 2. In his first report on the law of treaties, the present Rapporteur, Sir Humphrey Waldock, drafted Article 2 so as to save both agreements not in written form or a “unilateral declaration” (A/CN.4/144 of March 26, 1962, reprinted in 1962 ILC Yearbook, Vol. II at 35). In his commentary to this Article (also at 35) Sir Humphrey stated that paragraph 2 “acknowledges the existence of oral agreements such as that resulting from the Ihlen Declaration in the Eastern Greenland Case. . . .” A similar position was taken by the first special rapporteur on the law of treaties, Professor Brierly, who cites several precedents before the Permanent Court of International Justice for the binding nature of oral agreements (see Brierly, Draft Convention on the Law of Treaties, A/ CN.4/23, commenting on Article 1 (a) in 1950 ILC Yearbook, Vol. II, at 227).

¹⁰³ See I Oppenheim, International Law 898 (8th ed., Lauterpacht, 1955) and authorities cited in supra note 98. However, Lauterpacht, in his capacity as (second) Special Rapporteur on the Law of Treaties, took a different approach in Article 17 of his report on the law of treaties (A/-CN.4/63 of March 24, 1953, reprinted in 1953 ILC Yearbook, Vol. II, at 159–60). He proposed the rule that “[an] agreement is void as a treaty unless reduced to writing.” He wrote that “international precedents suggesting that oral agreements are binding as treaties are but few, insignificant and controversial … ” (1955 Yearbook, Vol. II, at 160). He also thought it was desirable, having regard to the “ … security and certainty of international transactions and to the significance of their subject matter, that treaties be recorded in writing” (ibid.).

¹⁰⁴ P.C.I.J., Series A/B, No. 53, at 71 (Judgement of April 5, 1933).

¹⁰⁵ McNair, op. cit. supra note 101, at 10.

¹⁰⁶ In Oppenheim, op. cit. supra note 103, at 898.

¹⁰⁷ Op. cit. supra note 99, Article i(a).

¹⁰⁸ Article 1 in Report on Law of Treaties, A/CN.4/63 in 1953 ILC Yearbook, Vol. II, at 90. In commenting on the International Law Commission’s draft article 1 (definitions) adopted at its 196a session, Australia, Austria, and the United Kingdom suggested that a reference be added in the definition to the intention to create legal obligations: see A/CN.4/177 March 19, 1965, at 18-ao (Sir Humphrey Waldock’s Fourth Report on the Law of Treaties). While “personally not opposed to the inclusion of a reference to the intention of the parties,” Sir Humphrey was of the view that the comments of governments did not introduce any new consideration which would justify him, in the light of the Commission’s earlier consideration of this matter, to formulate a fresh proposal on this aspect of the definition of a treaty. He described as follows the Commission’s attitude on this point: “The Commission, both in 1959 and 1962, decided that the present articles must be confined to international agreements whose execution is governed by international law and that the phrase ’governed by international law’ should be included in the definition to cover this point. At the same time it omitted any reference to the intention of the parties, considering that, insofar as this may be relevant in any case, the element of intention is embraced in the phrase ’governed by international law’.” (See A/CN.4/177 at 23–24).

¹⁰⁹ Article ι in Report on Law of Treaties, A/CN.4/23 of April 14, 1950, 1950 ILC Yearbook, Vol. II, at 223.

¹¹⁰ Article 4 in his first Report on the Law of Treaties, A/CN.4/101 March 14, 1956, in 1956 ILC Yearbook, Vol. II, at 108.

¹¹¹ Op. cit. supra note 103, at 96–98.

¹¹² See Higgins, R., The Development of International Law Through the Political Organs of the United Nations 4–7 (Oxford University Press, 1963).Google Scholar

¹¹³ For citation see supra notes 87 and 88.

¹¹⁴ For citation see supra note 89.

¹¹⁵ In the Advisory Opinion of the International Court of Justice in the Case of Voting Procedure relating to Reports and Petitions concerning the Territory of South-West Africa, [1955] I.C.J. Rep. 120.

¹¹⁶ See Fisher, Adrian, “Arms Control and Disarmament in International Law,” 50 Virginia Law Review, 1200, 1205 (1964).CrossRefGoogle Scholar For a discussion of the legal force of the General Assembly resolutions on outer space, see Christol, Carl Q.. “Space Stations: A Lawyer’s Point of View,” (1964) 4 Indian Journal of International Law 488, 490–91, note 5.Google Scholar The author states that, in view, in particular, of the careful preliminary work involved in these resolutions, they “must be regarded as having special legal force.” See also Schacter, , “The Prospects of a Regime in Outer Space and International Organization,” in op. cit. supra note 7, at 96.Google Scholar See also, Fawcett, J.E.S., Outer Space and International Order 8 (The David Davies Memorial Institute of International Studies, March 1964).Google Scholar A very useful analysis of the question whether resolutions 1721 A (XVI) and 1962 (XVIII) can be regarded as creating or embodying new customary international law is contained in Cheng, op. cit. supra note 51. For a discussion of the significance of the use of the term “declaration” in General Assembly Resolutions, see Memorandum of the United Nations Office of Legal Affairs on the “Use of the Terms ’Declaration and Recommendation’,” E/CN. 4/L. 610 (April 2, 1962).

¹¹⁷ American Commissioner in his dissenting conclusion, U.S./Mexico Special Claims Commission, in 26 Am. J. Int’l L. 196 (1932).

¹¹⁸ See Bowett, , “Estoppel before International Tribunals and its relation to Acquiescence,” (1957) 33 Brit. Yb. Int’l L. 177, 188–95.Google Scholar