Professor Cooper's thesis appears to stem from a supposed analogy to the principle in International Law of sovereignty over territorial waters. This was originally founded on the maximum that a State's territory extended to the sea within range of its coastal artillery. Long since obsolete, this maximum never had any real application to the air.

The true view, I suggest, is that the stratosphere and the space beyond are incapable of being the subject of dominion, and should be classed by lawyers as res nullius or res omnium communis. This, if I am right, emphasizes rather than diminishes the need for that International Convention proposed by Professor Cooper. But it should be based not upon sovereignty in the air or space but upon the permitted use of space whether by warlike projectiles, by man-made earth satellites or by pollution (e. g., radioactive fall-out) or dilution (e. g., weather control) of the atmosphere.

I do not wish to abuse your attention, but I think that, before terminating this exposé, I should make two observations, one on a question of terminology, the other on the possible contents of a new

convention.

(1) Terminology-In the various studies published on the problem, we may find many different expressions, like: "upper space," "upper atmosphere," "outer space," and also in the proposal of Professor Cooper: "territorial air space," "contiguous air space." These last two terms have been greatly criticized by the air lawyers, always proud of the autonomous character of their discipline. I wonder if it would not be preferable to use only two expressions:

"atmosphere," for the zone which is subject to national sovereignty in accordance with the Chicago Convention; and

"space," for the zone outside the atmosphere. Such a suggestion was made many years ago by an eminent "avocat" of Brussels, Mr. Emile Laude, who wrote in 1910 as follows:

"Le droit aérien ne s'appliquera jamais qu'au droit régissant l'air proprement dit, c'est-à-dire la couche des gaz respirables. ***Est-ce à dire que nous ne puissions prévoir les solutions juridiques que nos descendants auront à donner à toutes les questions soulevées par l'utilisation de la couche à gaz irrespirables et de la couche d'éther où baigne notre planète? *** Un droit nouveau régira des relations juridiques nouvelles. Ce ne sera plus du droit aérien *** Mais à coup sûr il s'agira de Droit de l'espace."

(2) Contents of a new Convention.-Such a convention should deal specially with the problems resulting from the circulation (I will not say: navigation, or flight) of space vehicles, called space crafts or space ships (I would prefer "space craft" in opposition to "aircraft").

Among the provisions which might be inserted therein, it seems to me that the convention should provide for:

a previous notification of any launching of space crafts (satellites, rockets, missiles, etc.);

an undertaking for the exchange of information resulting from observations made with space crafts;

some regulation concerning the choice of wave lengths;

another for the identification of the craft;

an undertaking for an indemnification of any damage resulting from the circulation of space craft;

a general delegation of authority to an agency-already in existence or to be created-for the issuance of any necessary regulations.

I sincerely hope that some international agency or a government will take, in the near future, the lead for the preparation of a convention. Its universal acceptance would benefit, not only the immediate future of scientific research in space, but also the safety of the present circulation within the atmosphere and of the people on the surface; it would also prepare the future of the circulation of man in space.

THE LEGAL STATUS OF THE AIRSPACE IN THE LIGHT OF PROGRESS IN AVIATION AND ASTRONAUTICS 1

Dr. Eugène Pépin 2

1

In recent years, aircraft with or without pilot and any craft, whether guided or not, have risen higher and higher above the surface of the earth. Research work and studies now under way indicate that further progress will be made in the very near future. In mid-September 1956, the major world airlines members of the International Air Transport Association (I. A. T. A.), whose headquarters is in Montreal, announced the future golden age of commercial aviation, which would commence with the introduction of pet aircraft flying at an altitude approximately 72 miles (12 kilometers) and at a speed in the vicinity of 550 miles (900 kilometers) per hour. At the same time, in Barcelona and in Rome, scientists were discussing some immediate and more remote projects; in Barcelona the members of the Preparatory Committee of the International Geophysical Year (I. G. Y.) heard communications made by the U. S. A. and U. S. S. R. Delegations on the launching, as a contribution to the activities of the I. G. Y., of satellites which will circle the earth in 90 minutes at an altitude of more than 300 miles (500 kilometers); in Rome the VII International Astronautical Congress (I. A. F.), dealt also with the problem of satellites, but in addition with projects for and the possibility of interplanetary travel prior to the end of the century. In December 1956, remote-controlled rocket experts will meet in Paris to study the problem of international carriage of mail by rocket.

In view of the progress already achieved and the prospects which lie ahead, experts in the field of air law have felt it necessary to consider whether the present state of air law is adequate to cope with such technical developments. Scientific associations and international organizations have already begun to deal with the problems now being raised. In November 1955, Mr. Andrew G. Haley, Director and General Counsel of the American Rocket Society, read to the annual meeting of that body an important paper on the "Basic concepts of space law." In May 1956, in Washington, the American Society of International Law devoted an entire meeting to the "Legal Problems of Upper Space" on the basis of an excellent report prepared by Pro

5

1 A communication on the subject has been made by the author before the "Académie des Sciences morales et politiques" in Paris on 24th September, 1956.

2 Dr. Pépin is Director of the Institute of International Air Law of McGill University. This is a reprint of Publication No. 2, 1957, of the Institute.

The U. S. A. communication, prepared by the U. S. National Committee for the I. G. Y., concerns the USNC-IGY Rocketry and Satellite programs.

E. G. Studies of a minimum orbital unmanned satellite of the Earth, by D. T. Goldman and S. F. Singer: Temperature problems of satellites, by S. F. Singer; the Vanguard satellite launching vehicle, by N. E. Felt: Minimum Earth-Moon Vehicle, by N. V. Petersen; One year exploration trip Earth-Mars-Venus-Earth, by G. A. Crocco; etc. All these papers were presented in mimeograph form and will be printed in the volume of the Congress.-See also in Shell Aviation News, No. 215, an article on the Project Vanguard. by F. R. Furth.

Pamphlet of 72 pages in mimeograph form.

fessor John C. Cooper. In July 1956, in Caracas, the Assembly of the International Civil Aviation Organization (I. C. A. O.) took note of the increasing interest that jurists were showing in "upper space" and considered that these problems were within its competence. On the first of September, at Dubrovnik, the International Law Association decided, upon a report of Prof. D. Goedhuis and after an important discussion, that its "Air Law Committee should continue the study of the nature and contents of air sovereignty, paying special attention to the problem connected with coming flight in the outer space and the legal nature of interplanetary space." Finally, at the International Astronautical Congress, held in Rome in September 1956, American and Italian lawyers exchanged their views on these problems.❞

I do not intend to describe all the legal problems raised by this new phase of the conquest of space, nor to seek solutions to these problems at this time. I have felt it preferable to limit this paper to a consideration of two concepts of positive air law, interpretation or modification of which I believe to be essential if scientific research and development are not to be hampered. These concepts are:

the legal status of the airspace, as it appears from the text of conventions in force;

the types of devices which may travel in the airspace, according to the same texts.

I

As far as the legal status of the airspace is concerned, the basic text is the Convention on International Civil Aviation, signed at Chicago on 7 December 1944,10 which created the International Civil Aviation Organization (I. C. A. O.), one of the specialized agencies of the United Nations, with a present membership of seventy States.

Article 1 of this Convention, only the English text of which was signed, provides as follows:

The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.

The term "territory" also embraces territorial waters."

The expression "espace aérien" which is used in the official French translation approved by ICAO,12 corresponds to the English word "airspace" of the authentic text, and has given rise to differences of interpretation as regards its extension upwards. However, if we go

• See Proceedings of the 1956 Annual Meeting of the Society.-Previously Professor Cooper presented in 1951, in Mexico City, a paper on "High Altitude Flight and National Sovereignty", published in 4 International Law Quarterly (1951), p. 411.

7 Report of the Legal Commission of the Assembly, I. C. A. O. Doc. A. 10 Le 15, p. 6, par. 12. 8 Report on "the Limitation of Air Sovereignty", and comments thereon by Dr. E. Pépîn and Prof. J. C. Cooper.

The following legal papers have been presented to the Congress: Method for studying legal problems relating to the conquest of the interplanetary space, by Aldo Armando Cocca Space Law and Metalaw (a synoptic view), by Andrew G. Haley.-Prof. A. Ambrosini took part in the discussion. Before the Third Astronautical Congress (1952), an address was delivered by Prof. Alex Meyer on "Legal Problems of Flight into the Outer Space", Zeitschrift fur Luftrecht 1953 p. 31.

10 U. N. Treaty Series Vol. 15, No. 102.

Art. 2 of the Convention: "For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto. 12 Pursuant to a Resolution adopted by the ICAO Council on 19 February 1952, the texts in French and Spanish shall be used for the internal purposes of the Organization and for any reference to be made by the Organization in communications to Contracting States; it was also recommended to Contracting States that, for reference purposes in their relations with ICAO and other Contracting States, they use these texts only.

back to the origin of the word "airspace", the meaning of "espace aérien" should not give rise to confusion. In fact, the Chicago Convention simply reproduces-although the Conference did not discuss the matter a provision 13 of the Paris Convention of 1919 relating to the Regulation of Air Navigation. This Convention was prepared in three texts, each being equally authentic. The French and Italian texts used the term "espace atmosphérique" and "spazio atmosferico" (atmospheric space), whereas the English text used the term "air space". The "airspace" of the Chicago Convention therefore corresponds to the "espace atmosphérique" of the Paris Convention. Since 1919, most States have incorporated the provisions of the Paris Convention in their national legislation, using sometimes the term "espace atmosphérique" 14 and sometimes the term "espace aérien".15 Laws of some States refer prudently to the "space" above their territory,16 and one State, Nicaragua, specified in its 1950 Constitution that its national territory included the "atmospheric space" and the "stratosphere".

Consequently, positive international air law recognizes the sovereignty of a State as extending only to the atmospheric space above its territory, although the thickness of the atmosphere, which varies over different parts of the globe, is not accurately known. States which are parties to the Chicago Convention could not, therefore, prohibit air traffic above their atmospheric space; 17 moreover, there is no convention which gives any international body the power to control such traffic. However, certain technical regulations drawn up by ICAO, by virtue of the powers granted that Örganization by the Chicago Convention,18 and certain decisions taken by States in implementation of that Convention might give rise to certain doubts. In order to ensure the safety of air traffic, ICAO has brought into force rules which establish over a large part of the surface of the globe controlled zones called flight information regions, control areas, control zones and airways.19 These zones extend, between parallel vertical limits, from the ground or from a certain height upwards to a given altitude, but frequently "without any upper limit". The question therefore arises as to whether control should be exercised, in the latter case, beyond atmospheric space, if the necessary tracking instruments are available.

The States, for their part, by virtue of Article 9 of the Chicago Convention, are entitled to establish prohibited, restricted or danger areas over their territories, the location and extent of these areas being given in Notices to Airmen (NOTAMs). A large number of these areas have no upper limit. Does the prohibition or restriction of flights therefore extend to air traffic even beyond atmospheric space?

13 Article 1.

14 e. g. Bolivia, Colombia, Ecuador, Spain.

15e. g. Chile, Dominican Republic, Egypt, Iran.

10 Brazil.

17 See C. Wilfrid Jenks, "International Law and Activities in the Space", International and Comparative Law Quarterly (1956), pp. 99-119.

18 Art. 54 of the Chicago Convention: "The Council shall *** (1) Adopt *** international Standards and recommended practices; for convenience, designate them as Annexes to this Convention."

19 Zones defined in and established in accordance with Annex 11 (Air Traffic Services), under recommendation of Regional Conferences.

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