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other state; but its subjects remain under an obligation not to disregard them *** and it preserves the power of compelling observance by punishment if a person who has broken them returns within its jurisdiction." 5

Under this principle, if the law of Mexico so provided, Mexico could prosecute our offender when and if he came back into Mexican territory.

Furthermore-and this may come as a surprise to you-Cuba might also have the power to punish our Mexican offender if he should later come within the territorial limits of Cuba. The principle of international law which would give Cuba jurisdiction is called the "passive personality principle." Cuba's power would be based solely upon the nationality of the person injured. This last principle has not been accepted as universally as the first two. Enough countries have followed it, though, to give at least a semblance of legality to the exercise of jurisdiction by a country in Cuba's position.

Several different, independent, sovereign nations may thus be entitled to exercise jurisdiction in a single fact situation. As might be expected, this legal situation has led to a great deal of confusion. As a result, there have been efforts to limit the discretion left to states by international law with respect to the exercise of jurisdiction in cases of this sort. These efforts have been made through international conferences and bilateral treaties. For the most part, they have had little effect.

Here, then, is a field in which a system of law governing relationships in outer space could avoid the pitfalls of the law of the sea. It seems likely that the regions of outer space will eventually come to have a status comparable to that of the high seas. In such a situation, the territorial principle of jurisdiction will not suffice. Whatever relationship may eventually be accepted as a basis for jurisdiction over persons and acts in space, it would certainly be desirable that jurisdiction under a particular set of facts should be exclusive, rather than multiple and concurrent.

RULES FOR SPACE NAVIGATION

I now come to the third and final problem that I wish to discuss with you today. That is the problem of establishing flight rules for space travel and rules for the prevention of collisions. Here, too, experience with the law of the sea may be instructive.

You are all aware that ships traveling on the high seas are bound, today, by a set of navigational rules. These rules are known as the International Regulations for Preventing Collisions at sea. They are the result of international agreement. Practically every maritime nation has agreed that its ships-both warships and merchant ships-shall be bound by these rules.

But even before we had international agreement on the subject, there were navigational rules which formed a part of the law of the sea. The Supreme Court of the United States discussed this aspect of the law of the sea in 1871, in the case of The Scotia. At the time that case arose, there was no international convention establishing

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navigational rules. England had set the pattern with her own set of rules. Other maritime nations had followed suit by enacting laws establishing requirements identical to the English rules.

In the Scotia case, an English steam vessel had collided with an American sailing vessel. The collision occurred on the high seas. It was alleged that the American vessel was at fault because she had not been displaying the lights required for a sailing ship by American statute. The Supreme Court discussed the question as to what rules of navigation were applicable on the high seas. In the course of the discussion, it talked about the source of the law that governed the situation. The Court said:

"Conceding that it was not the law of the United States, nor that of Great Britain, nor the concurrent regulations of the two Governments, but that it was the law of the sea, was it the ancient maritime law, that which existed before the commercial nations of the world adopted the regulations of 1863 and 1864, or the law changed after those regulations were adopted? Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world."" Here, then, is the source of the law of the sea governing the navigation of the high seas. That law draws its authority from "the common consent of civilized communities." It springs from "the concurrent sanctions of those nations who may be said to constitute the commercial world." The technical rules themselves, of course, must come from the experience of the navigators.

CONCLUSION

I must apologize to you for dealing so lightly with the problem of jurisdiction over acts in space and the problem of establishing flight rules for space navigation. To my mind, however, the solutions to those problems, and to many other problems, must await the solution of the primary problem-that of sovereignty over space. Even that problem cannot be adequately attacked by the lawmakers until our knowledge in the field of space has increased considerably beyond what it is today. A great many scientific experiments and explorations are planned in connection with the 1957-58 International Geophysical Year. Perhaps these experiments and explorations will provide us with the vast amount of factual information we will need.

I have been able to discuss these problems with you today in only a speculative and tentative manner. Perhaps say, two years from now someone can come before your distinguished Society and provide you with concrete solutions to the problems of formulating a law of outer space.

7 Id. at 187.

How, then, can we apply this information to our problem of formulating a law of outer space?

So far as I am aware, the technical and scientific knowledge upon which flight rules for space travel must be based-the experience of the navigators—is not yet available to us. Your experiments and your developments may soon supply us with the information we will need. The law of the sea tells us where to look for the authority to back up our rules of space navigation, once we have our technical information. To paraphrase the opinion of the Supreme Court in the Scotia case, the authority behind our rules of space navigation will come from the concurrent sanction of those nations who may be said to constitute the space community.

LEGAL TERMINOLOGY FOR THE UPPER REGIONS OF THE ATMOSPHERE AND FOR THE SPACE BEYOND THE

ATMOSPHERE*

By John C. Hogan, Research Editor, The Rand Corporation, Santa Monica, California

There are no established definitions in law for describing the upper regions of the atmosphere or the space beyond the atmosphere. The legal dictionaries and the law encyclopedias do not even refer to the stratosphere or the areas above. The author of a recent article on the problems of high altitude jurisdiction thus declares:

Terminology presents some problems. Space, outer space, and even airspace to some extent are often used interchangeably although each may have different scientific, legal, and ordinary meanings.1

The urgency of the need for a standard terminology in law for describing the upper regions of the atmosphere (and the areas beyond) arises from the fact that there is a variety of man-made objects which will soon be operating at high altitudes some outside the atmosphere and these can be expected to present somewhat different legal problems depending upon the heights and speeds at which they fly.

Astronautical jurisprudence is a new field of law, and it raises some basic questions which must soon be answered, namely: What, in law, is meant by the term "airspace?" What are the scientific divisions of the upper regions of the earth's atmosphere? How does "space" differ from outer space," "world space," "territorial space," "continguous space," terrestrial space," etc.?

WHAT IS "AIRSPACE?"

3

There has never been a satisfactory definition in law of the term "airspace" the word is frequently used in domestic decisions involving disputes between landowners and aviators and in international conventions governing the rights of nations to fly over one another's territory-probably because there has never been a systematic attempt by judges or lawyers to think out the legal position

*Reprinted from The American Journal of International Law, April 1957, pp. 362–375. 1 H. B. Jacobini, "Problems of High Altitude or Space Jurisdiction," 6 Western Political Quarterly 681, note 5 (1953). For recent articles on law and activities in the upper regions of the atmosphere (and beyond), see John C. Hogan, "Space Law Bibliography," 23 Journal of Air Law and Commerce 317-325 (1956).

2 The Journal of Space Flight has published a list showing model, type, and flight characteristics of twenty-five different high-altitude vehicles which the Soviet Union has under development. These include a satellite vehicle, an intercontinental ballistic missile, a medium-range ballistic missile, a supersonic glide missile, a guided aircraft rocket, several manned rocket planes, etc. A comparable development in this technology also exists in the United States. See Alfred J. Zaehringer, "Table of Soviet Missiles," 8 Journal of Space Flight 1-4 (1956).

See the recent Canadian case, Lacroix v. the Queen, 4 D. L. R. 470-478 (1954).

The term is used but not defined in Art. 1, Paris Convention of 1919, and in Art. 1, Chicago Convention of 1944. Cf. Shawcross and Beaumont on Air Law 175 (London, 1951). See also Eugène Pépin, The Legal Status of the Airspace in the Light of Progress in Aviation and Astronautics (Pub. No. 2, Institute of International Air Law, McGill University, Montreal, 1957), p. 3.

of the "airspace" in relation to the upper regions of the atmosphere. According to Sir (now Lord) Arnold Duncan McNair

anyone who seeks to make this attempt now that it has become of immediate importance to do so is driven to search for scraps in many different fields. Across his path is continually cast the pale shadow of the cujus est solum maxim, which, like most maxims and slogans, has merely been used either to darken counsel or to afford a short cut and an excuse for not thinking the matter out upon a basis of principles.5

As long as the areas at any appreciable height above the surface of the earth were incapable of being reached by man, the term "airspace" could be used loosely in law by judges, lawyers, and others, unaware of the technical problems involved at extreme altitudes, to refer to the right of the landowner to all of the area above his land ad infiinitum and in the sense of the ad coelum maxim. But from the time that the atmosphere has first been used for flight, there has been a noticeable tendency in law to grant aviators a right in the "airspace" above land. In the domestic law of the United States, and elsewhere, various theories have been advanced for this purpose,' and these have been described as "attempts to strike a balance between the property interests of the landowner and the demands of a growing industry." In international law, also, academic theories have been proposed which would limit state sovereignty in the atmosphere, but none of these has ever been adjudicated by an international tribunal, and the vast majority of states have adopted the doctrine of complete and exclusive sovereignty over the "airspace" above their territories.10 But here too, the tendency to limit is seen in express treaty provisions which grant reciprocal rights to fly over one another's territory."

Article 1 of the Chicago Convention of 1944 provides that every state has "complete and exclusive sovereignty over the airspace above its territory," but the term "airspace" is nowhere defined in the convention.12 Shawcross and Beaumont declare:

An English lawyer might argue that "complete" and "exclusive" are tautologous. But it is submitted that an international tribunal would interpret "complete" as meaning "without limit," and that therefore there is no limit of height. * * * It is submitted that, whatever the answer might be, it would not be based on an interpretation of the article which gave to the words "over the airspace" the meaning of “above the airspace." The position under the Convention should be carefully contrasted with the Federal Law of the

s Arnold Duncan McNair, The Law of the Air 297 (2nd ed. by Michael R. E. Kerr and Robert A. MacCrindle, London, 1953). See John C. Cooper, "Roman Law and the Maxim Cujus Est Solum in International Law," 1 McGill Law Journal 23-65 (1952-1955). By decree of Nov. 15, 1921, Peru proclaimed freedom of aviation at an altitude above 3,000 metres. Oppikofer, in 1930, observed that "Peru constitutes an exception. . This is a last survival of Fauchille's liberal theories. * * See Enquiries into the Economic, Administrative, and Legal Situation of International Air Navigation (League of Nations, 1930), No. C, 339, M-139 (1930), VIII, p. 112. Peru has now ratified the Chicago Convention of 1944.

See Henry G. Hotchkiss, A Treatise on Aviation Law 20-34 (New York, 1938).
William L. Prosser, Handbook of the Law of Torts 87-88 (St. Paul, 1941).

Shawcross and Beaumont, op. cit. 173-174. See also Wienczyslaw Wagner, Les Libertés de l'Air 27-42 (Paris, 1948).

10 Ch. I, Art. 1, Convention on Civil Aviation, in Proceedings of the International Civil Aviation Conference, Chicago, Illinois, November 1 to December 7, 1944, Vol. I, p. 147 (Washington, 1948).

"But see McNair, op. cit. 8, who says that "the fact that most States are willing to exchange a mutual right to entry and passage no more derogates from the principle of national sovereignty than does the admission of foreign ships to purely national waters by the Barcelona Convention of 1921 upon navigable waterways of international concern." Cf. state control over marginal seas and territorial waters: S. Whittemore Boggs, "National Claims in Adjacent Seas," 61 Geographical Review 185-209 (April, 1951).

12 See note 10 above.

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