Over the high seas, there is freedom of air traffic 20 in the sense that aircrafts may fly without being subject to any authority other than that of their State of Registry. However, since the signing of the Chicago Convention, aircrafts flying over the high seas are required to observe the Rules of the Air established by ICAO,21 although there is nothing in this document or in the Convention which limits their application to traffic through atmospheric space. Are we therefore to conclude that ICAO might issue air traffic rules applicable over the high seas beyond atmospheric space? Furthermore, within the controlled zones established, in accordance with the decisions of ICAO, over a considerable part of the oceans and, in particular, over the entire North Atlantic, traffic is controlled from 600 metres upwards without any upper limit. Finally, although the Chicago Convention does not provide for prohibited, restricted or danger areas over the high seas, States have established and are establishing such areas, on a permanent or temporary basis, for the purpose of carrying out naval manoeuvres, artillery practice or atomic tests. Thus, in the Pacific, around the atolls of Eniwetok and Bikini there has been declared an enormous danger area covering 14° of longitude and 8° of latitude.22 Off the coasts of the United States and of Canada, there have existed for several years new air defence identification zones extending at some points for a distance of 200 miles out to sea.23

To summarize, therefore, there are a certain number of points in connection with air traffic over continents and over the high seas, which directly involve the concept of airspace or atmospheric space and which need to be clarified.

II

Similar problems arise with respect to the provisions of the Convention which relate to machines or devices capable of moving above the surface of the earth.

The Chicago Convention and its Annexes apply to one single category only aircraft. However, the Convention itself contains no definition of the term "aircraft" and ICAO has had to develop such a definition and to include it in various Annexes 24 which, however, do not have the same mandatory force as the Convention. The definition adopted is the same as that used in the 1919 Convention: "Any machine which can derive support in the atmosphere from the reactions of the air". Some jurists claim to have found in this definition a justification for limitation of the airspace to atmospheric space.25

According to this definition and to a classification of aircraft contained in one of the Annexes, aircraft are deemed to include balloons,

20 Provisional articles concerning the regime of the high seas prepared by the International Law Commission (1955) provide in Art. 2: "The high seas being open to all nations, no State may subject them to its jurisdiction. Freedom of the high seas Comprises: "4. Freedom to fly over the high seas."

21 Arts. 12 of the Convention:

"** over the high seas, the rules in force shall be those established under this Convention. * *

Notice to Aviators. 12th March 1956.

23 These zones, called ADIZ and CADIZ, were established respectively by the U. S. Reg. Sect. 620, 2 b. and by the Canadian Information Circular 0/19/51 of 12th May 1951. A thesis on the subject for an LL. M. degree presented by a Member of the Institute of International Air Law is in the printing stage with the Queen's Printer in Ottawa. 24 Annexes 6, 7, and 8.

25 Cooper, loc. cit, in note 5 above, p. 413: Oscar Schachter, "Legal Aspects of Space Travel." 11 Journal of the British Interplanetary Society (1952), p. 14. Opposite view: B. Cheng "Recent Developments in Air Law", Current Legal Problems 1956 p. 212.

airships, aeroplanes, and helicopters, but not free or remote-controlled rockets, satellites or any other device capable of moving in space without deriving support from the reactions of the air. It should be added that various national legislations contain definitions of aircraft, which could apply to new devices,26 and that ICAO has the power to amend a definition or classification contained in an Annex.27

As regards true aircraft, some are the subject of special convention. provisions, e. g., pilotless aircraft. Article 8 of the Chicago Convention prohibits the flight of any aircraft without a pilot over the territory of another State without authorization by the latter. Furthermore, the contracting States undertake that such aircraft shall be so controlled as to obviate danger to civil aircraft. Among pilotless aircraft are included sounding balloons, the normal use of which, for meteorological purposes, is provided for in the regulations of the World Meteorological Organization, a body with a near universal membership. Since last January, the United States has launched from various points in Europe and America large-size sounding balloons (1,600 cubic metres) carrying heavy scientific instruments of various types. The flight of some of these balloons over the U. S. S. R. and the fact that some of these instruments fell on the territory of that State after destruction of the balloons in the atmosphere, led to a protest which was addressed to the United States Government on February 4th. The U. S. S. R. stated that such balloons, owing to their size, constituted a hazard to air navigation and that, furthermore, the launching of pilotless aircraft was contrary to the principles of international law relating to the complete and exclusive sovereignty of States over the space above their territories. Several days later, the United States replied that when, in January, the proposed launching of these balloons was announced no protest had been made and that, furthermore, these balloons, which were actually "miniature satellites" intended for study of methods to be used during the Geophysical Year, travelled at heights far above the levels at which commercial aircraft operate.28 However, the launching of these balloons close to the Eastern European States appears to have been suspended. The question arises as to whether such balloons fall within the categories specified in the international regulations.

As for rockets, satellites or other devices not covered by the definition of aircraft, there is at present no international rule governing their flight. However, in order to ascend into space, these must pass through the atmosphere over the continents or over the high seas, and here again the question arises as to whether some regulations might not be required in order to avoid possible interference with civil aviation. Furthermore, the return to earth of such devices-if they are not disintegrated beforehand-may conceivably cause damage obviously not covered by the conventions on compensation for damage

e. g. U. S. A. (Civil Aeronautics Act 1938, sect, 1, 1 (4): “Aircraft means any contrivance now known or hereafter invented, used, or designed for navigation of or flight in the air." 27 Art. 54 (m) of the Convention: "The Council shall (m) Consider recommendations of the Air Navigation Commission for amendment of the Annexes and take action. in

Note of U. s. S. R.. 5th February 1956, New York Times 6th February: U. S. A. Answer. 8th February 1956, id. 9th February: U. S. S. R. reply, 18th February 1956, id. 19th February.-A similar complaint was submitted by Czechoslovakia to ICAO: see discussion at the Executive Committee of the 1956 Assembly, ICAO Doc. A 10-WP/150, p. 138.

caused by aircraft only or by persons or objects falling therefrom. It would appear that States which are conducting research on rockets and missiles or are planning to launch satellites have felt the need, in the absence of any convention provisions, to obtain the express or tacit authorization of States likely to be overflown.

For example, the tests of guided missiles, which have been conducted for several years in Florida by the United States, gave rise to a series of bilateral agreements with the United Kingdom for the purpose of establishing over the Bahamas and adjacent waters a vast test area for the launching and flight of missiles over distances of more than 1,000 nautical miles. This area was recently extended as far as Santa Lucia in the West Indies, thus permitting firings over more than 1,600 miles, and it is now proposed to extend it over the Atlantic to Ascension Island of Africa, more than 4,000 miles from Florida. This test area, part of which extends over the high seas, is considered to be a danger area without upper limit and is the subject of NOTAMs.29

Regarding the satellites, launching of which was announced on 29 July 1955 by the White House, as a contribution to the studies being made in the Geophysical Year, no protest having yet been made against the project, the United States appear to consider that they have received the tacit consent of the other States, particularly of those which are members of the International Committee of the Geophysical year.

30

This brief review indicates some of the gaps in the present international regulations governing air traffic. If scientific research now under way and the expansion of air traffic beyond the atmosphere are not to be hampered, these gaps will have to be filled. Various suggestions were put forward at the meetings mentioned at the beginning of this paper.

There appears to be general agreement on the need for a new international convention supplementing the Chicago document. Some would like to see ICAO given the task of drawing up regulations for the movement of all craft and devices, not only in and through atmospheric space, but also beyond. Others, however, are considering the possibility of their sovereignty in regard to travel through space. Consideration was also given to the possibility of dividing space into several zones. For instance, Professor Cooper, in a paper he read to the American Society of International Law, suggested, by analogy with maritime practice, three different zones: first of all a "territorial space" which would be restricted to the atmosphere; then a contiguous space zone extending up to a height of 300 miles, over which States would still have sovereignty, but through which any non-military aircraft would enjoy transit rights for ascent and descent; above this zone traffic would be entirely free. It would appear premature, however, to envisage any particular division of space at this stage, since we are only beginning to acquire knowledge of the various zones of

29 Agreement of 21st of July 1950, U. N. Treaty Series, vol. 97, no. 1351; Agreement of 15th January 1952, id., vol. 127, no. 1697: Agreement of 24th February-2nd March 1953, id., vol. 172, no. 2249; Exchange of Notes of 11th-22nd July 1955 (not yet published).

Haley, op. cit. in note (4), and U. S. A. Note of 8th February, op. cit. in note (27). 31 Cooper, op. cit., in note (5), 1956. Other divisions of space have been suggested, e. g. by Prof. Ambrosini, at the International Astronautical Congress of Rome.

space, and the work to be done during the Geophysical Year is certain to provide data which will permit further progress in the legal study of these problems.

It is therefore up to ICAO, which has declared itself competent in this field, to pursue these studies without delay, naturally with the assistance of all interested legal bodies. It is to be hoped that jurists will not let themselves be outdistanced by technicians."

THE RUSSIAN SATELLITE-LEGAL AND POLITICAL

PROBLEMS 1

By John Cobb Cooper, Former Director, Institute of International Air Law, McGill University; Legal Adviser, International Air Transport Association

On October 4th, 1957, the U. S. S. R. launched the first man-made satellite. This memorandum is written in Europe only two weeks later. The satellite and the shell of the last rocket stage from which it was launched have already circled the earth over two hundred times. Before the launching only a small group of jurists were concerned by the lack of any international agreement as to the extent of national sovereignty in space above the surface of the earth and by the legal status of possible space flight instrumentalities. Today world-wide recognition of the gravity of these questions is more than apparent.

As the New York Times said in a leading article on October 13th: Is the earth satellite trespassing on the air-space of all nations? If the sky is the limit of national sovereignty, how high is it? Who pays if a United States satellite falls on Westminster Abbey?

These are some of the questions that, until a week ago, were hypothetical. They are so no longer, for since then a 184-pound sphere has been circling the earth at 18,000 miles an hour.

Behind most of the present difficulties lie certain basic, but at times forgotten, legal principles:

a. The territory of a sovereign State is the area within which it has the right to make its law effective, to the exclusion of all other States. b. As part of that right, the State has full control of transport in its territory, including the determination of what foreign transport instrumentalities may be permitted to enter.

c. Territory of a State is three dimensional, including the lands and territorial waters within its recognized surface boundaries, and the "air-space" above.

The prime difficulty is that no international agreement exists as to how far above the surface lies the upper boundary of this three-dimensional national territory. In other words, how far upwards is the "roof on sovereignty," and what is meant by "air-space."

Many nations, including the United States, but not the U. S. S. R., participated in drafting the Paris "International Convention for the Regulation of Aerial Navigation, 1919," which recognized that "every Power has complete and exclusive sovereignty over the air-space above its territory." For reasons not connected with air-space sovereignty, this convention was not ratified by the United States. However, in 1926, by the passage of the Air Commerce Act, the United States unilaterally asserted its exclusive sovereignty in the air-space over its surface territories. The U. S. S. R., in various statutes, going back to

1 Reprinted from The Journal of Air Law and Commerce, Autumn 1957, pp. 379-383