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THE IMPACT OF DISARMAMENT ON AIR SPACE SOVEREIGNTY

This review of legal thinking on the subject of air space sovereignty verifies the dominance of our Anglo-Roman legal heritage.91 Freedom of the air space in its international aspect is inseparably bound to the doctrine of sovereignty. The fact that most States are willing to exchange a mutual right of entry and passage by treaty does not derogate from the principle of national sovereignty; it is a concession to the imperative pressures of national existence in the modern world. The dilemma was succinctly put by Brierly:

There are two competing interests which a satisfactory state of the law would reconcile as far as possible, that of the subjacent state in its own security, and that of all states in the greatest possible freedom of communications. Of the two the interests of security have been preferred in the present law."

It is clear that if certain international controls could be adopted to protect the legitimate national fears, the dilemma could be resolved to the benefit of mankind and the promotion of world peace.93 President Eisenhower's "open air" plan for disarmament provides an initial and portentous beginning to achieve these goals.

The premise of the aerial inspection plan is that when the two great atomic powers, the United States and Soviet Russia, open up to each other and lay bare their military potential, the security of the whole world will be increased. As described by Mr. Stassen: "A climate of greater confidence will surely prevail. And in that climate, the world will build the kind of disarmament and inspection system in which all nations can put their trust *** a system in which all can reduce and limit and regulate armaments and armed forces." 94 The plan recognizes the fact that the airplane has made obsolete the geographic protection states have relied upon in formulating their economic, military and diplomatic blueprints. It also acknowledges the fact that we are no longer the absolute masters of the most powerful tool of war. Military authorities such as Air Marshal Sir John Slessor have appraised the situation as follows: "We have in fact reached the practical ultimate instrument for mutual destruction. We have at last arrived at the point when war-in the sense of total world war as we have known it in our generation-has abolished itself as a practical instrument of policy." "5 Major de Seversky has written that "Air attack and air defense are probably more finely balanced today than at any other stage of the past forty years of military aviation." 96

91 The venerable theory of sovereignty of air space by the terrestrial sovereignty held sway to such an extent that it was not until 1939 that an American court ventured to hold that title to the air space unconnected with use of the land is inconceivable. Hinman et al. v. Pacific Air Transport, 84 F. 2d 755 (9th Cir. 1936). This represents judicial recognition of Kelsen's "effectiveness" theory. Referring to the Paris Convention of 1919, Kelsen wrote: "It stands to reason that a State can enforce the provisions of this convention or of its own national legal order against the aircraft of another State only within that part of the air space over which it has effective control. The validity of any legal order cannot extend beyond this sphere." General Theory of Law and State 217 (1949). This theory was reiterated in his later volume, Principles of International Law 226 (1952). Cooper also subscribes to the "effective control" theory: "Perhaps the rule should be, in the absence of international agreement, that the territory of each State extend upward as far into space as it is physically and scientifically possible for any one State to control the regions of space directly above it." Op. cit. supra note 33, at 418.

92 Brierly, op. cit. supra note 41, at 185-86.

3 Burke, Influences Affecting International Aviation Policy, 11 Law & Contemp. Prob. 598, 601 (1946).

United States Mission to the United Nations, Press Release No. 2121, 5, Oct. 7, 1955.
Slessor, Air Power and World Strategy, 33 For. Aff. 42, 44 (1954).

de Seversky, Air Power: Key to Survival 233 (1952). Testifying before a special Senate Foreign Relations subcommittee on disarmament, Sec. Dulles stated that a situa tion of "mutual deterrence" was developing. N. Y. Times, Mar. 1, 1956, p. 6, col. 3.

President Eisenhower has reached the conclusion that nations must support plans which provide for the only form of security which is really secure-international cooperation to limit the potential of offensive war. More significantly, the aerial inspection plan rests upon the belief that to disarm in the light of modern destructive weapons is the only form of security commensurate with world organization. In fact, the goal of political security by means of ground and aerial inspection may develop into a function of a world organization such as the United Nations or through some independent instrument provided for under the Charter of that organization pursuant to Article 52.97

99

Once the control of armaments contemplated by the President's proposals becomes operative, the element of national security as a buttress to the air space sovereignty doctrine will diminish in importance. States will no longer fear a surprise attack from the air for the heart of the inspection plan is a warning system to guard against such attack.98 The aggressor nation could not conceal the massive months-long preparations for a surprise attack from the alert aerial and ground inspection corps inside the country's borders. During the initial inspection period neither nation would be asked to reduce its armed strength until there was complete assurance on both sides that each portion of any proposed disarmament agreement could be verified continuously through inspection. Strategic bases or landing areas could, in effect, be demilitarized. No longer could a nation in control of strategic bases or "heartlands" control the world. The great resource of the "ocean air" adapted to the interests of securing the peace would also become a limitless channel for the promotion of international cultural and economic understanding. It has been noted that the "threats of war and ideological dogmatism now delay the full exploitation of technical improvements that would accrue, in a milder political climate, to civil aviation."2 Once armaments have been effectively controlled, it will be difficult for a state to justify to world opinion a policy of closing an area to foreign civilian aircraft operations on the ground of security. "[S]ooner or later the world will probably revolt against a monopoly which obstructs the natural course of a channel of trade vital to the community of nations." Demilitarization would obviate a national policy which would restrict the use of a strategic base only to airlines of favored states, and thereby eradicate a source of political

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97 Art. 52 (1) of the U. N. Charter states: "Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations."

At the five-nation U. N. disarmament subcommittee meeting at London in March, 1956, Jules Moch, French delegate, introduced a comprehensive three-stage BritishFrench disarmament draft. "The so-called Moch Plan, provides in brief a three-stage world disarmament schedule based on the preliminary creation of an international United Nations control inspectorate." N. Y. Times, Mar. 20, 1956, p. 3, col. 7.

98 A concentrated air defense scheme against surprise attack is today "beyond the economic resources of any world power, taking its other military commitments into account." Lee, Trends in Aerial Defense, 7 World Politics 234 (1955).

99 Mutual Inspection for Peace, op. cit. supra note 2, at 10, 16.

1 Bishop, Winged Peace 320 (1944).

2 Strausz-Hupé, Aviation and International Cooperation, Annals 134, 137 (May, 1955). "Air transportation could be one of the keys to unlock the bars to international understanding and cooperation-provided statesmen and nations are rational enough to put this rational device to proper and full use." 140.

3 Goedhuis, op. cit. supra note 88, at 612.

grievance which would swell in proportion to the importance of the base for world traffic. The disarmament plans of President Eisenhower would have the effect of depriving the base in question of its military potential.*

As the armament control plan would discount the security element which is attributed to be the necessary basis of present doctrines of air space sovereignty, so would it work to deemphasize the ultranationalistic economic defense of that doctrine. To the extent that aerial inspection leads to disarmament, making war more remote than at present, so it would enable civil aviation to make international cooperation a reality. The problems arising from rate wars, subsidies, nationalistic maneuverings for route privileges have threatened some international discord. International tensions from this source will continue until there is established an international régime in the field of scheduled international services immune from the burdens of territorial sovereignty and economic chauvinism. The cultural lag between the phenomenal and continuing technical advances in aeronautical science and restrictive legal-economic doctrines must be bridged if mankind is to benefit from the harnessing of its greatest resource "the ocean air."

The problem of sovereignty of air space has not presented itself heretofore in as forceful aspect as confronts the world girded with atomic projectiles and jet-propelled aircraft. Technology again, disturbs the legal-economic concepts of mankind. Confronted with the Herculean problems which technology has spawned, statesmen must act upon the realization that the air is the least nationalizable of the three basic elements. "There is no field of human activity for which the claim of freedom is more insistent than in the field of the air." 5 Mutual trust and a concomitant method of providing for the security of nations are imperative prerequisites to achieve freedom of the air space. Although the history of nation-states has shown that the process of limiting State sovereignty, in any of its aspects, has always been a slow one, history has also demonstrated that world opinion has responded to bold, imaginative leadership when the perils of the age were clearly understood. Like the idea of freedom of the seas, the idea of freedom of air space will require many years to realize; the Geneva proposals of President Eisenhower, marked with the pragmatism of military experience and the idealism of enlightened statesmanship, may well prove to be an historic beginning.

"The security of an area of military importance which at the same time is indispensable as a base for world aviation should therefore, in the ultimate interests of the owners of the base as well as in the interests of the community of nations be guaranteed by all possible means, except the one which leads to the prohibition of the use of the base by foreign aircraft. It is clear that no useful purpose would be served in making at the present time any suggestions concerning the way of guaranteeing the security of the bases in question, as this problem is of course closely bound up with the general security problem which, at the end of this war, may have to be solved." Ibid.

Id. at 613.

33259-59

PROCEEDINGS OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW AT ITS FIFTIETH ANNUAL MEETING, WASHINGTON, D. C., APRIL 25-28, 1956 1

FOURTH SESSION

1

Thursday, April 26, 1956, at 8:15 p. m.

INTERNATIONAL AIR LAW

The session reconvened at 8:15 o'clock p. m., Professor Oliver J. Lissitzyn of Columbia University presiding.

Professor LISSITZYN. Fifty years ago, when this Society was founded, international air law did not exist. There was no pattern of distinctive doctrines, practices and precedents developed and applied by decision-makers that merited that name. The reason for this was very simple. Aviation had not yet reached the point where its regulation became a matter of serious concern to governments. But lawyers and scholars had already begun to speculate on the need for an international law of aviation and also on the shape that such law would or should take. In this country, the first man to discuss publicly these matters was a founder and prominent member of the Society, the late Arthur Kuhn. On December 31, 1908, he read a paper at a meeting of the American Political Science Association under the title of "Aerial Navigation and Its Relation to International Law." A year or so later, Mr. Kuhn expanded his ideas on the subject in an article printed in the American Journal of International Law for 1910, at page 109, entitled "The Beginnings of an Aerial Law." In this article he took up the problems of municipal as well as international law. In both fields his ideas make fascinating reading today, for he was remarkably far-sighted. He rejected as impractical the then rather fashionable doctrine of the freedom of the air, and very clearly saw the necessity of founding air law on the concept of the sovereignty of states over the airspace above them. As you know, within a few years that concept triumphed. It became the mainstay of the legal framework within which international aviation and all kinds of aviation have been developing ever since. But today we are faced with the prospect of entirely new problems arising from new achievements of man in the conquest of space. As you know, the Government of the United States expects to launch so-called earth satellites into outer space within two years. Inter-continental ballistics missiles in their trajectories will also rise to upper space. Is it likely that the new problems that are going to face us can be adequately solved within the traditional framework based on sovereignty over airspace? It seems to me that the very word "airspace" is incongruous in application to space in which there is little or no air, and

1 Published by the Society, 1826 Jefferson Place NW., Washington 6, D. C., 1956.

the term "air law" is hardly appropriate to describe the regulation of human activity in such space. As was true of international air law fifty years ago, the law of upper space is today a matter not yet of governemntal pronouncements or actions, but rather of scholarly discussion and analysis-perhaps I should say speculation. Such discussion, of course, cannot make law, but it can serve to clarify the problems, their implications and the possible alternative solutions and thus help the policy-makers and the public to choose the solutions which will be best fitted to particular practical needs.

We are fortunate in having as our speaker and as members of the discussion panel tonight, lawyers who have practical experience as well as scholarly interest in international air law.

Our principal speaker tonight has worked in the field of international air law continuously for the past thirty years. He has participated in numerous conferences and meetings on international air law, on many occasions as representative of the United States or as adviser to United States delegations. For many years he was Vice President of Pan American Airways in the formative and, I dare say, the most interesting stages in the existence of that airline. As adviser to the Delegation of the United States and Chairman of the Drafting Committee of the Chicago Conference in 1944, he took an intimate part in the preparation of the International Civil Aviation Convention. He is Legal Adviser of the International Air Transport Association. At the same time he has been a distinguished scholar, creator, first director and professor of the Institute of International Air Law at McGill University, and author of numerous works on international aviation. For the last ten years he has concentrated on the study of the history of international air law and I hope I am not giving away a secret when I say that we may look forward to seeing the results of this study published within a year or two in a book on the Development of the Law of Space Flight. In the last five years he has increasingly turned his attention to the subject which he will discuss tonight: the legal problems of upper space. I am very happy to present to you Professor John Cooper.

LEGAL PROBLEMS OF UPPER SPACE

By John Cobb Cooper,2 Princeton, N. J.; Professor, Institute of International Air Law, McGill University

Today neither lawyers nor governments are prepared to state the legal flight rules applicable to presently operating rockets and planned satellites. For the second time in the present century science and engineers have far outstripped the law. Such delay may be normal where legal rules must depend on known and accepted factual situations, but the gap between technological and legal progress must never be permitted to become too wide.

The present problem confronting us is this: Flight instrumentalities, such as rockets, satellites and other spacecraft do not fall within existing national or international regulatory provisions. Nor is there any agreement as to what, if any, national or international regulation is applicable to space above the atmosphere where such rockets and

Former Director, Institute of International Air Law, McGill University; Legal Adviser, International Air Transport Association.

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