country, Great Britain and France indicate that each signatory will subject the air carriers of the other to evenly-applied “laws and regulations." See United States-France Air Transport Services Agreement, Art. V., 61 Stat. 3445, TIAS No. 1679 ([signed and entered into force on] March 27, 1947); Bermuda Agreement, Art. 5, 60 Stat. 1499, TIAS No. 1507 ([signed and entered into force on] Feb. 11, 1946). See also Convention on International Civil Aviation (Chicago Convention), 61 Stat. 1180, TIAS No. 1591 [done on December 7, 1944; entered into force for the United States on April 4, 1947].

The issue, then, is whether the Concorde's concededly revolutionary technology justifies a temporary ban of operations for study of the advisability of applying to it the noise regulations generally applicable to jet aircraft and for consideration, if necessary, of new and reasonable regulations tailored to the special noise characteristics of the SST [supersonic transport]. The reasonableness of the Port Authority's ban or the study itself is not before us. Accordingly we are not called upon to decide this sensitive question. We are compelled to note, however, that, should the Port Authority's action be found arbitrary and capricious, a serious question would be raised concerning its compatibility with American treaty arrangements. The delicate framework of international understanding that make possible the flourishing of transoceanic air travel has already been rent by the Concorde controversy; it is manifestly imperative that noise regulations, promulgated by those who, like the Port Authority, operate our international airports, withstand all allegations of arbitrariness or discrimination.

We accordingly direct that the district court on remand proceed to conduct an evidentiary hearing on the reasonableness of the Port Authority's thirteenmonth ban on Concorde landings at JFK.

558 F. 2d 81-86 (footnote omitted).

On August 17, 1977, the U.S. District Court for the Southern District of New York ruled, inter alia, that the Port Authority's resolution of March 11, 1976, was "unlawful and void" and that British Airways Board and Compagnie Nationale Air France were "entitled to the declaration and injunction they seek . . . ." British Airways Bd. v. Port Auth. of N.Y. & N.J., 437 F. Supp. 804 (1977), 818. District Judge Milton Pollack found the Port Authority's delay in establishing a noise standard for the Concorde "unreasonable, discriminatory and unfair."

Excerpts from the district court opinion follow:

It is unreal for P.A. [Port Authority] to say we are helpless to quantify theoretically the additive effect of the vibration created by Concorde on Concorde's noise and at the same time, to bar use of the airport under the circumstances shown herein under the guise of conducting more studies to resolve the unknown aspects of the variables. Yet, this precisely is what P.A. espouses to be concerned with.

The conclusion is inescapable from the evidence presented to the Court, and the Court finds that the P.A. has no intention of taking the responsibility of setting the present or another noise standard applicable to the Concorde. Its failure and excessive delay in doing so are unreasonable, discriminatory and unfair and an impingement on commerce and on the national and international interests of the United States.

The P.A. has abdicated the limited cooperative authority delegated to it as an airport proprietor and has forfeited its privilege to establish noise regulations for Concorde other than those applicable to jet aircraft at JFK and those

embraced in the amended Federal specifications granted to the plaintiffs for purposes of the experimental tests.

Under the circumstances shown, the ban of Concorde from transatlantic service at JFK is an undue interference with achievement of congressional and national objectives. The airlines are consequently entitled to proceed at JFK under the existing regulation of the P.A. for jet aircraft and under the direction of Secretary Coleman and the license of the FAA pursuant thereto.

For further information concerning Secretary Coleman's Feb. 4, 1976, decision, see the 1976 Digest, Ch. 8, § 5, pp. 416-423.

Transatlantic Air Fares

On June 14, 1977, President Carter "approved the decision of the Civil Aeronautics Board permitting Laker Airways to provide lowfare 'Skytrain' service for one year between New York and London." The Skytrain service features regularly scheduled, no-reservation flights at a cost of $101.48 from London to New York and $135 from New York to London.

13 Weekly Comp. of Pres. Doc. 881 (June 30, 1977).

The summary statement of the decision of the Civil Aeronautics Board in this matter, Order 77-6-68 (served June 14, 1977) reads in part as follows:

Foreign air carrier permit issued to Laker Airways Limited, authorizing the carrier, for a period of one year, to engage in (a) scheduled foreign air transportation of persons and their accompanying baggage between the terminal point London, England, and the terminal point New York, N.Y., and (b) charter trips in foreign air transportation subject to the terms, conditions, and limitations prescribed by Part 212 of the Board's Economic Regulations, subject to conditions, inter alia, suspending the holder's right to exercise the privileges thereunder if the U.K. Government should unilaterally restrict the capacity or fares of U.S. carriers operating a service in the market competitive with the holder's.

For further information concerning Skytrain service, see ante, Ch. 8, § 2, pp. 640-641.

On September 26, 1977, President Carter overruled the Civil Aeronautics Board and approved new low-cost transatlantic air service including a $256 budget fare for a roundtrip between New York and London and a $290 advanced purchase excursion ("super-apex”) fare for a roundtrip between London and New York. Similar superapex fares were approved for Boston, Chicago, Detroit, Los Angeles, Miami, Philadelphia, and Washington. The fares were approved for an experimental period through March 31, 1978.

The text of President Carter's September 26, 1977, letter to Alfred E. Kahn, Chairman of the Civil Aeronautics Board, announcing this decision follows:

I have reviewed your proposed order (Docket 31363) dated September 16, 1977, which suspends passenger fares filed by Pan

American World Airways, Inc., Trans World Airlines, Inc., British Airways, Air-India, Iran National Airlines Corporation, and Aerlinte Eireann Teoranta for foreign air transportation.

Under my authority pursuant to section 801 (b) of the Federal Aviation Act of 1958, as amended, I have decided to reject the Board's order as inconsistent with this Administration's foreign economic policy. I must emphasize that my international aviation policy carries with it a commitment to low fare, competitive international air service for the benefit of American consumers. I am not convinced that these innovative, carrier-initiated, low fares would damage the international aviation system. If the Board obtains new evidence after these fares are in effect that they are indeed predatory, I will consider a suspension of the rates at that time under the terms of the ad hoc agreement negotiated on September 19, 1977, with the United Kingdom.

I would also take this opportunity to suggest that the Board give serious attention to reforming present rules covering charter flights to permit those services to be more competitive with the new low fare scheduled flights and more responsive to the foreign economic policy reasons for encouraging low fare passenger service. Liberalizing charter rules will assist in the expansion of air travel markets and should provide real benefits to consumers and carriers alike.

13 Weekly Comp. of Pres. Doc. 1422 (Oct. 3, 1977).

86

Outer Space
General

Geostationary Orbits

On April 6, 1977, David P. Stewart, Alternate U.S. Representative in the Legal Subcommittee of the U.N. Committee on the Peaceful Uses of Outer Space, presented a U.S. statement on geostationary orbits which reviewed some scientific aspects of such orbits and outlined the U.S. position on their use by satellites in light of the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies done on January 27, 1967 (TIAS 6347; 18 UST 2410; 610 UNTS 205; entered into force for the United States October 10, 1967). Excerpts from Mr. Stewart's statement follow:

[M]y delegation has noted the statements made at this session concerning the nature and status of the geostationary orbit and of satellites in that orbit. In particular, we have noted the claim that those portions of the geostationary orbit which lie over land should be considered as within the national jurisdiction of the subjacent State. The Legal Subcommittee has also heard the assertion that the geostationary orbit is a "unique natural phenomenon" and a "limited natural resource," and that by virtue of its special physical

relationship to the underlying States, it comprises a "third dimension of national sovereignty" which is beyond the scope of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies.

My delegation agrees that the geostationary orbit is a natural phenomenon of special interest and that it assumes particular importance with respect to communications and other applications. We cannot agree, however, that there is any proper basis, either scientific or legal, for a unilateral claim of exclusive national sovereignty over the geostationary orbit. In the view of my delegation, geostationary as well as other orbits of artificial Earth satellites lie in outer space and are, therefore, in the words of the 1967 Outer Space Treaty, "not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means." In this connection, we believe it would be useful to review the scientific and technical aspects of the geostationary orbits, as well as the purely legal aspects of its use by satellites.

It is particularly important to bear in mind certain relevant facts in regard to the physical phenomena determining geosynchronous orbits in general. The effective utilization of space for most applications requires the placement of satellites into generally elliptical and circular orbits about the Earth. Ascendency into these orbits can be effected from a wide range of locations on the surface of the Earth, with varying energy requirements depending upon the azimuth and latitude of launch. The characteristics of the orbit are dependent to a substantial degree not only on the gravitational field of the Earth but also on the velocity, altitude and azimuth of insertion of the satellite. The gravitational field around the Earth is derived from its total mass and, except for small effects, is independent of the detailed characteristics of the Earth's surface. It is, of course, utterly unaffected by political boundaries.

It has been claimed in the December 3, 1976, Declaration of Bogota that "the geostationary synchronous orbit is a physical fact linked to the reality of our planet because its existence depends exclusively on its relation to gravitational phenomena generated by the Earth." If gravity were the exclusive force acting on a satellite in geostationary orbit, the flight path of that satellite would be a vertical drop to the surface of the Earth. We know, of course, that this is not what happens.

From a scientific and technical standpoint, the geosynchronous orbit of the Earth is like any other orbit which is regularized, standardized or repeated. Since all repetitive orbits involve continuous motion around the Earth, it is possible (given the rotation of the Earth) to choose a circular orbit of such radius, period and inclination that the motion of an orbital vehicle is synchronized, or nearly so, with the Earth's rotation and, therefore, with a particular location on the surface of the Earth. Satellites in such orbits appear to be relatively stationary to an earthbound observer but in fact are not stationary. Fortunately, the rotation of the Earth is such as to allow satellite synchronization at orbital radii (or altitudes) which are suitable for effective satellite applications.

In this orbit, as in others, the satellite's path through space is not determined by any single factor but rather is affected by a combination of factors, including at least the energy imparted by the launch vehicle, the mass of the spacecraft, the altitude at which it moves above the Earth, the forces of gravity of the Earth, the Moon and the Sun, and the radiation pressure of the Sun. Consequently, the geosynchronous orbit is essentially a regime of satellite flight paths, not a physical natural resource.

By way of example, if the Earth were rotating more rapidly than it does now, the geosynchronous altitude would necessarily be less than at present, and if the Earth were rotating more slowly, that altitude would necessarily be greater. The connection between orbital mechanics and the Earth's current rotational velocity bears no causitive relationship to locations on the Earth's surface. It is rather an interaction based on the properties of the whole Earth. In his report to the Legal Subcommittee on current developments in the ITU [International Telecommunications Union], the Deputy Secretary General of the ITU consistently described the work of the ITU in connection with the geosynchronous orbit as dealing with "nominal orbits" and "nominal orbit locations." The reason, of course, is to reflect the fact that such positions in space are only nominal, and that satellites in geosynchronous orbits require constant monitoring and adjustment to maintain their positions.

There is, therefore, no scientific or technical basis for considering the geosynchronous orbit, or any part of it, to bear any special relation to an underlying State. In fact, there is a clear scientific basis for recognizing that this orbit derives its main characteristics from the properties of the entire Earth, irrespective of national boundaries or political jurisdictions, and that it is also affected by other forces at work in the orbital location.

As members of this Subcommittee are aware, the area in which satellites may be placed in geostationary orbit lies approximately 35,500 km (22,300 miles) above the equator, almost three Earth diameters distant from our planet. This area is not a single point on an unidimensional plane, but rather has a certain height, depth and width, in effect constituting a three dimensional belt. The geostationary orbit lies considerably farther from the Earth than the usual orbital space utilized by satellites in non-geosynchronous orbits; indeed, most Earth-related activities regarded as taking place in outer space occur at altitudes equal to or below the geostationary orbit. . . . [R]egardless of the absence of any specific, agreed-upon definition or delimitation of outer space, we do not believe it can be reasonably argued that the geostationary orbit does not lie in outer space. Its use is, as a legal matter, clearly permitted under, and must be guided by, the provisions of the 1967 Outer Space Treaty.

We find no basis in that Treaty for treating this particular portion of outer space differently from any other. Article I of the Outer Space Treaty specifically states that outer space "shall be free for exploraton and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law. . . ." Article II states that "Outer space. . . is not