Book Reviews
Explorations in Aerospace Law (Selected Essays by John Cobb Cooper), Ivan
A. Vlasic, ed. McGill University Press, Montreal: 1968. Pp. xx, 480 ($7.50).
This review of John Cobb Cooper’s selected essays has long been
overdue, but unforeseen circumstances prevented me from writing
it earlier. I therefore owe a special apology to the readers of this
Journal and in particular to its editors –
the more so in that the
volume under review is one of great value: one which every specialist
in air or space law should keep as a reference book of lasting
importance. Conceived as a volume crowning the work of John
Cobb Cooper, it has become a posthumous tribute to him.
It is particularly the personality of the author which makes this
volume almost unique in the literature of these subjects, for hardly
anyone else had so close an association with them in both theory and
practice. For over 30 years John Cobb Cooper was active at inter-
national conferences, in posts with national and international organ-
izations, with one of the world’s leading airways and, finally, in the
world of learning. He had a most intimate knowledge of large and
small problems –
all the intricacies of aerial navigation. Long
before space exploration had become a reality, he turned his interest
to this new domain. He then shared his experience and knowledge
with students of the Institute of International Air Law at McGill
University, of which he was the first Director (and with which I
had the pleasure of being associated).
Throughout these years he was a prodigious writer of books
and articles. His writings as Professor Vlasic (editor of the volume)
rightly points out, cover “almost every aspect of aeronautical and
space activities that can be subject to legal regulation”.’ Small
wonder that in the evening of his life he was looked upon as a grand
old man of air and space law.
We are therefore very fortunate to have this collection of essays.
We owe a special debt to their distinguished author for prefacing
them with small notes (“Author’s Notes”) which, by explaining the
circumstances in which they were written, constitute a useful guide
I Explorations in Aerospace Law (Selected Essays by John Cobb Cooper),
Ivan A. Vlasic, ed., (McGill University Press, Montreal: 1968), at p. xi. Here-
inaftor cited as Explorations in Aerospace Law.
McGILL LAW JOURNAL
[Vol. 19, No. 4
to understanding them and place his views in proper perspective.
Although the collection includes only one-third of the articles written
by him, it covers 451 pages and is an important part of the rich
heritage he has left us.
Throughout these pages one is able to follow Professor Cooper’s
interests in the key issues of air-law in historical perspective, from
its early beginnings when the first rules for air navigation were being
shaped to the important decisions taken at Chicago in 1944. Twenty
years later he looked back at the Chicago Convention –
its achieve-
ments and shortcomings –
and tried to visualize its further develop-
ment. Then we have his studies on the legal aspects of the use and
exploration of outer space: his searching mind dealt with the growing
number of problems facing states in the Space Age.
In all of these studies there is an harmonious blend of theory and
practice. By looking backwards, Professor Cooper senses the meaning
of a rule for the law of today and the need for its development
tomorrow. In fact, he was one of the rare specialists in his field
always several steps ahead of his contemporaries, not only in mere
speculation, but relying on strong practical considerations. But,
what is particularly striking, Professor Cooper never hesitated to
change his views or to revise his previous conceptions if he thought
that a new approach was necessary. Thus he went on reviewing his
own work, freely admitting (what a rare virtue!) when he felt that
he had committed an error. This indeed adds a new dimension to his
contribution, for it not only testifies to his high intellectual honesty
but challenges the reader to adopt the same frankness of outlook.
Of particular interest are his studies on the question of sovereign-
ty in air-space. He goes back to the well-known maxim, cujus est
solum, in international law. The essay, “Roman Law and the Maxim
‘Cujus est’ solum’ in International Law”,2 written in 1952, is the
result of a very searching historical analysis which traces the origins
of claims to air-space made centuries before man was able to fly.
Reflection on the distinction between coelum and aer, on the Digest,
Justinian Code, the glosses of Accursius, the XVth and XVIth century
editions of the Code, the XVIIth century dissertation of Jean-Etienne
Danck, De jure principis aereo (to which Nys referred earlier), and
finally on the respective rules of common law and civil codes of
all
many states, including decisions of the United States courts –
makes most interesting reading. It leads him to the conclusion
“that States claimed, held, and in fact exercised sovereignty in the
airspace above their national territories long prior to the age of
2 Ibid., at p. 54.
1973]
BOOK REVIEWS
flight” and that its “recognition” by modern air-law “was well
founded in law and history”.3 As if to confirm this finding he goes
on (in another essay 4) to review the proceedings of the International
Air Navigation Conference, held in Paris in 1910 –
that Conference
which adjourned, never reconvened, and which he rightly qualifies
as “technically a diplomatic failure”. 5 Yet the course it followed
and the positions of its principal participants lead him to the
conclusion that, after all, this Conference “evidenced tacit but actual
agreement… that each State had full sovereignty in flight-space
over its national lands and waters as part of its territory.. .”.6 Thus
it laid the foundations for the Paris Convention of 1919. It is here
that he frankly admits what he considers as his own error, com-
mitted five years earlier, in his major study, The Right to Fly.7 There
he had suggested: “had a vote been taken [at the Conference of
1910], a convention might then have been adopted… recognizing
as the long-established Law of Nations that ‘the air is free’ “. Now
he confesses: “Several years of intense research… convinced me
that the conclusions which I reached … are unsound.”9
The developments in the years 1910 to the outbreak of World
War I, which he analyses in another essay 10 (written in 1954), are
used as a further illustration of “State sovereignty in space” being
legislative acts, such as the
recognized. Notes of governments,
British Aerial Navigation Act of 1911, the French Presidential Decree
of the same year, several Decrees and Orders of German States, lead
him to conclude that the principle of sovereignty in the air was
accepted and that: “No European or other State protested these
unilateral acts.” 1
Another essay,12 although written earlier in 1951, constitutes a
continuation of the same theme. It dwells upon the role of the
United States delegation at the Paris Conference of 1919. By
comparing the three drafts submitted to the Conference (the British,
French and United States) and following up the discussion on them,
he illustrates how the United States position turned the scales in
ibid., at p. 103.
3Ibid., at p. 102.
4 “The Evolution of the Modem Principle of State Sovereignty in Airspace”,
rIbid., at p. 105.
0 Ibid., at p. 123.
7 Henry Holt & Co., New York: 1947.
8 Ibid., at p. 33.
9 Explorations in Aerospace Law, at p. 124.
0 “State Sovereignty in Space: Developments 1910 to 1914”, ibid., at p. 125.
“Ibid., at p. 133.
12″United States Participation in Drafting Paris Convention”, ibid., at p. 137.
McGILL LAW JOURNAL
[Vol. 19, No. 4
favour of the French proposal, thus limiting the rights of foreign
aircraft and excluding what has now become the third, fourth and
fifth freedoms of the air.
An essay on “Air Transport and World Organization”, 13 again
written much earlier (in 1946), leads us into the wider field of air-
law and the problems which it faced on the establishment of ICAO,
when “[a]ir transport has become an inseparable part of the
complicated fabric of world transport”. 4 He dwells on the differ-
ences between sea and air transport, and lays special stress on the
political aspects of air power: “Though its uses are various, both
military and civil, it is basically indivisible”.1 While realizing the
implications of the right of states to develop their air power, he
sees the solution in a world organization, vested with “sufficient
international control”, which, however, should not unduly affect
“[t]he needs of the public for adequate transportation”, for,
“[w]orld commerce must never be unduly retarded”:’, a plea rem-
iniscent of Richard Cobden. Comparing this objective with the
decisions taken at the Chicago Conference, he finds that, while
adequate provisions for “the unification of technical and safety
procedure” were established, “[i]n the economic and political fields
the need for international organization remains unsatisfied”. 17 Hence
his regrets concerning the weaknesses and limitations of the Transit
and Transport Agreements and the difficulties encountered in respect
to them.
He carries his reflections further by evaluating the well-known
Bermuda Plan and Agreement (11 February 1946) in which he saw
a “possible compromise pattern for future general international
control”‘ He was convinced that these problems could be solved
by a co-ordinated effort of the United Nations (in particular its
Economic and Social Council and Security Council) and ICAO:
“Aviation is a dynamic force. World air transport is its most im-
portant instrumentality in time of peace. Such a dynamic force
cannot long await the final decision of political discussions.”‘1 This
is indeed the vision which he carried throughout his life and which
is so forcefully reflected in his writings. The goal leaves little room
for doubt, but he seems to have underestimated the preoccupation
13 Ibid., at p. 356.
14 Ibid., at p. 363.
15 Ibid., at p. 369.
‘6 Ibid., at pp. 371-72.
17 Ibid., at pp. 372-73.
18 Ibid., at p. 376.
19 Ibid., at p. 380.
1973]
BOOK REVIEWS
of many states with their national interests, a factor which remained
a serious element in the development of legal provisions on the
subject.
He was disappointed with the limited progress made in 1944 and
the years which followed. Thus, in late 1946 (in another article20),
he returns to the theme of the Bermuda Plan and Agreement. He
discusses the arrangements concerning routes, privileges, rates, fre-
quencies and capacity of services. Notwithstanding its limitations,
he reaffirms the view that the Bermuda Plan “could easily become
the basis of a general international air transport convention”.21
Professor Cooper’s deep commitment to the cause of furthering
air transport makes him return to the question of internationaliza-
tion of air transport (three years later in 1949).22 He traces the
discussion on the subject to the days of the League of Nations (in
the Air Transport Co-operation Committee of 1930-1932), pointing
to the close relationship to the debates on disarmament (1933).
There follows the adoption of the Civil Aeronautics Act of 1938, by
which the United States committed itself to air transport on a
competitive basis. He describes the confrontation of views which
manifested itself on the eve of the Chicago Conference between
those advocating “an International Air Transport Authority”
(Australia and New Zealand) and those desiring the continuation of
the competitive system. It was reflected at the Conference itself, at
the interim assembly of PICAO and the first assembly of ICAO. The
purpose of this essay, in his own words, was “to state the existence
and history of the disagreement between major powers as to whether
internationalization should or should not be accepted as a basis for
future organization and operation of world air trunk services” 23
His own views leave little room for doubt.
In “A Study on the Legal Status of Aircraft” (1949),24 he gives
a profound historical analysis of the status of vessels, railways,
automobiles and aircraft –
a detailed picture of how there evolved
“that quality of legal quasi-personality in public international law
known as ‘nationality’ “,.25 He makes a series of recommendations,
aimed at the improvement of law on the subject.
20,The Bermuda Plan: World Pattern for Air Transport”, ibid., at p. 381.
21 Ibid., at p. 393.
22″Internationalization of Air Transport”, ibid., at p. 395.
23 Ibid., at p. 411.
4 Ibid., at p. 204.
25 Ibid., at p. 241.
McGILL LAW JOURNAL
[Vol. 19, No. 4
These studies on air navigation conclude with an essay written
in 1965,20 in which he reviews the achievements of ICAO in the light
of an experience of 20 years. He singles out major fields of particular
importance: for example, he states that the “Convention has served
as a useful and powerful vehicle for the restatement of principles of
internal law”.27 (Among the latter, he mentions air-space sovereignty
freedom of flight over the high seas, nationality of aircraft as trans-
port instrumentalities and special limitations on “state” aircraft.)
Turning to a brief evaluation of the general nature of ICAO, he
again admits that the solutions adopted were a compromise. Yet
ICAO “was given strong technical powers together with economic
functions applicable generally within the advisory and research
fields”.28 One cannot but fully subscribe to his conclusion “that the
decisions made at Chicago were sound”.2 One must also agree with
his discussion concerning the relationship between the text of the
Convention and its Annexes, the special status of the latter permitting
their amendment by a simplified process. This, no doubt, led to the
establishment in practice of regulations of the greatest possible
uniformity.
Of particular interest are his comments on the ambiguities in the
Convention. They concern the well-known Articles 5 and 6 (schedul-
ed and non-scheduled flights), Article 15 (on airport or similar
charges), and Article 77 (joint transport organizations). The last of
these raises the important question of registration and nationality
of aircraft, in case international organizations should operate in this
field. Further developments and decisions taken by the ICAO
Council on particular issues did not resolve the questions raised by
Professor Cooper.31 In the years that followed the writing of this
essay, Professor Cooper would have derived comfort from the con-
siderable expansion of the activities of an ICAO whose membership
has grown from 108 to 127 and from the fact that many of the
problems raised by him continue to be discussed both within and
without the Organization. The solution of some of them has become
very urgent, and there are frequent calls for a reassessment of the
work of the Chicago Conference.
26″The Chicago Convention – After Twenty Years”, ibid., at p. 439.
27 Ibid., at p. 441.
28 Ibid., at p. 444.
29Ibid.
30 Ibid., at pp. 446 et seq.
31 Cf. the same question raised in regard to the law of the sea by J.P.A.
Frangois, “Report on the Rights of International Organizations to Sail Vessels
under their Flags”, Yearbook of the International Law Commission, (1956),
vol. II, at pp. 102 et seq.
1973″I
BOOK REVIEWS
The final question posed by Professor Cooper in this essay is a
the Convention continue to function
very pertinent one: “Can
successfully in the light of present and future outer-space develop-
ments?” On a note of skepticism, he concludes that: “Whether the
Chicago Convention can meet this test is most doubtful.13 2
Although this essay is the last in the collection, it could equally
well constitute an opening or explanation for his many stimulating
studies on the law of outer space –
a subject which he was one of
the first to discuss.
One of the most interesting questions which engrossed him for
several years was the need to establish a frontier between air and
outer space. Writing on “High Altitude Flight and National Sov-
ereignty” (1951), 33 he tried to define the inner frontier of outer space
(or the frontier of state territory upwards). He called for some
reasonable rules, and rightly pointed out: “Any theoretical possibility
of a State controlling far distant regions in space is absolutely out of
the question.”3 4 His was a preliminary suggestion and he had the
merit of being one of the first to pose the question concerning the
status of outer space. This was to be resolved 12 years later in the
Declaration of Legal Principles on the Exploration and Use of Outer
Space of 1963 and the Space Treaty of 1967. With the tenacity so
characteristic of him, he went on to analyse the “Legal Problems of
Upper Space” (1956): 3′ the need for the establishment of the upper
limit of national air-space, for a right of transit in air for non-military
aircraft and for considering the issue of the “nationality” of rockets
and satellites. A year later (1957), in a paper written two weeks
after the launching of the first sputnik, 3 he called for consideration
of exact data concerning the contiguous zone in the light of scientific
information and urged the conclusion of a treaty on the subject
under the auspices of the United Nations.
Disagreeing with the first report published by the United Nations
ad hoc Committee on the Peaceful Uses of Outer Space, which found
that the determination of a frontier did not require “priority consid-
eration at this moment”, he reiterated his proposal for a frontier,
but now based on different criteria, with a right of transit accepted
within an “intervening area” 37 He pursued his claim for outer space
to be declared “a common highway for all” and again for every
3 2 Explorations in Aerospace Law, at p. 451.
n Ibid., at p. 356.
34Ibid., at p. 264.
35 Ibid., at p. 268.
436,The Russian Satellite – Legal and Political Problems”, ibid., at p. 279.
37 Ibid., at p. 291.
McGILL LAW JOURNAL
[Vol. 19, No. 4
instrumentality to have a determined status of nationality. In 1964,
in the address to the National Convention of the Federal Bar
Association, he offered a new solution for the frontier problem.
In another article,3 8 he repeated this proposal, while offering
greater specification on the status of the contiguous zone where a
state “could exercise the same preventive and protective jurisdiction
against foreign flight instrumentalities as it has in its airspace zone
except that rights of passage would be permitted for non-military
flight instrumentalities when ascending toward or descending from
outer space above” 3 9 The frontier question remained in abeyance
until 1967. Only after the conclusion of the Space Treaty was it again
placed on the agenda of the United Nations, and ever since it has
been under consideration by both the Legal and the Scientific and
Technical Sub-Committees of the United Nations Committee on the
Peaceful Uses of Outer Space. The General Assembly having recom-
mended “the study of questions relative to the definition of outer
space”,40 official proposals have been submitted, while many sugges-
tions have come from writers on the subject. The difficulties involved
are, of course, obvious. Here I would own to having myself been one
of those who suggested that there were no cogent reasons for states
to proceed with the delimitation of the frontiers between airspace
and outer space. Yet I now feel that we are approaching the day
when Professor Cooper’s views may be accepted. Even if his concrete
proposals are not fully adopted, he will be remembered as one of
the first to place the issue before the law-makers and one who
spared no effort to find a proper solution for it. Nor can one forget
his perseverance to resolve other questions, inter alia his suggestion,
made in 1964, for the conclusion of a treaty which would recognize
the principle of the non-appropriation of celestial bodies.4 1
He also took a great interest in the status of spacecraft, and
pleaded for the extension to them of the concept of nationality
applied to aircraft.42 However, the solution which found its way into
the Declaration of Legal Principles of 1963 and the Space Treaty of
38 “Contiguous Zones in Aerospace –
Preventive and Protective Jurisdic-
tion”, ibid., at p. 316.
39 Ibid., at p. 325.
40 Res. 2222 (XXI), 19 December 1966.
41 See: “Who Will Own the Moon? The Need for an Answer”
(1965-66),
Explorations in Aerospace Law, at pp. 339 et seq. It should be noted that the
principle of non-appropriation of celestial bodies did, in fact, materialize on
27 January 1967.
42See: “Basic Problems of Aircraft Nationality”, Author’s Supplemental
Note (1966) to “A Study on the Legal Status of Aircraft”, ibid., at p. 251.
19733
BOOK REVIEWS
1967 was based neither on the sea-law concept of the “State of the
flag” nor on air-law’s “nationality”, but on “jurisdiction”.
In the context of nationality he also raised the question of the
registration of spacecraft (as he did that of aircraft), in case they
are launched by an international organization 3 This problem,
indeed, was not resolved by the provisions of paragraph 7 of the
Declaration of Legal Principles, nor by Article VIII of the Space
Treaty. However, the need to deal with registration in all its aspects
has been growing; the matter was placed on the Agenda of the Legal
Sub-Committee of UNCPUOS and France submitted a Draft Con-
vention concerning the Registration of Objects Launched into Space
for the Exploration and Use of Outer Space (1968). Of special inter-
est are Articles 1 and 2(c) and (e).
These are some illustrations of how Professor Cooper’s timely
suggestions had to be taken up by the law-makers for outer space,
for they concerned issues without whose solution law could not
progress.
The range of Professor Cooper’s interests was wide. They led him
to reflect, inter alia, on such problems as “Airspace Rights over the
Arctic” (1949) 44 and claims of various governments relying on the
“sector theory”; on the legal status of flights above the high seas
and territorial waters (1959);45 on “Self-Defense in Outer Space and
the United Nations”, in the context of Article 2, paragraph 4, and
51 of the Charter (1962) ;46 on “Liability for Space Damage” (1965) 47
in which essay he deals with possible conflicts of jurisdiction be-
tween the rules of outer space and air law; on “State Sovereignty
Versus Federal Sovereignty of Navigable Space” (1948) ,48 a survey
of conflicts of law between state and federal sovereignty in the
United States. His vision of man’s future activities in outer space
prompted considerations on “The Manned Orbiting Laboratory”
(1965),14 and in this context on the “peaceful” and “military” uses
of outer space.
Throughout these pages, in particular in “Air-Law –
A Field
for International Thinking” (a lecture delivered in 1951)50 and
43Ibid., at p. 254.
44Ibid., at p. 171.
45 “Space Above the Seas”, ibid., at p. 194.
40 Ibid., at p. 412.
47″Liability for Space Damage – The United Nations – The Rome Conven-
tion”, ibid., at p. 432.
48 Ibid., at p. 156.
49″The Manned Orbiting Laboratory: A Major Legal and Political Decision”,
ibid., at p. 423.
50 Ibid., at p. 2.
McGILL LAW JOURNAL
[Vol. 19, No. 4
Subject-Matter and Terminology” (1963),”‘ the
“Aerospace Law –
reader is bound to be impressed with Professor Cooper’s growing
conviction that the two branches of law will finally merge into one
r~gime, governing all man-made instruments located above the
surface of the earth. He visualized “a single branch of the law”,
which “should include all rules applicable to flight no matter at
what height”.” This is indeed his valedictory.
Several of these essays cover similar ground; and they revert to
the same basic issues. This is frequently the case with collections,
but at least it has the advantage of maintaining the integrity of the
treatment of each stage and aspect.
Some of them, as their titles may indicate, constitute a balance-
sheet of the law as it stood at the time they were written, others
presented mere inklings of rules to come, while others again have
been overtaken by events. Yet none of this diminishes their value, for
they are important signposts on the road to understanding of the
issues and their evolution. Thus they make indispensable reading
for every student of the many chapters of air and outer space law.
They enshrine the thoughts and pre-occupations of a man deeply
concerned with the development of law and its progress.
Gratitude is due to those who made this publication possible,
especially Professor I. A. Vlasic 0 3 for his work as editor, an exacting
task which he has carried out with great care. On the arrangement
of the essays, I would say that it might perhaps have been wiser to
divide and arrange some of them in a more systematic manner, so
as to follow more closely Professor Cooper’s thinking and the de-
velopment of his various concepts. This, however, does not diminish
our debt to the editor, who, moreover, introduces the collection with
a very useful Foreword. To Professor Maxwell Cohen 4 we owe
particular thanks for sponsoring the publication, and also for his
so gracefully written tribute to John Cobb Cooper. A special word
of praise, finally, to the McGill University Press for the presentation
and print, which makes the volume an adornment of the bookshelf.
Manfred Lachs *
51 Ibid., at p. 43. Cf. also an essay mentioned earlier: “The Chicago Conven-
tion – After Twenty Years” (1965), at pp. 449-51.
52 Professor Cooper uses the term “Aerospace Law”: ibid., at p. 44.
53 Director, Institute of Air and Space Law, McGill University, Montreal,
Canada.
5 Formerly Dean of the Faculty of Law, McGill University; Currently Mac-
donald -Professor of Law, McGill University.
* President of the International Court of Justice.
1973]
BOOK REVIEWS
Historical Introduction to the Study of Roman Law by the late H.F.
Jolowicz and Barry Nicholas, Third edition 1972, Cambridge: Cambridge
University Press, Pp. xxvi, 528. ($49.50).
Except in South Africa, where it continues to be part of the
living law, Roman law has ceased to be a compulsory teaching
subject in most, if not all, universities in England and those coun-
tries which once formed part of the old British Empire. Even at
Oxford and Cambridge, for centuries centers of study of the Roman
law, it is no longer prescribed for law students. But though its
study is no longer of concern to the large mass of law students,
it has lost none of its importance as a jurisprudential subject, and
it must be a matter of great satisfaction to all who are interested
in law as a science to see that the younger generation of romanists
in England and Scotland are carrying on where the older one left
off. This is attested by the third edition of W.W. Buckland’s Text
of Roman Law, which was published, thoroughly revised by Pro-
fessor Peter Stein of Cambridge, in 1963, and now by H.F. Jolowicz’s
Historical Introduction, which has just appeared in the third
edition, revised and brought up to date by Professor Barry Nicholas
of Brasenose College, Oxford, well-known author of An Introduction
to Roman Law.
Since 1952, the publication date of the second edition of the
Historical Introduction (last reprinted, with corrections, in 1967),
which was still the sole work of Professor Jolowicz, a mass of
literature on Roman law has been published, including, to mention
only a few of the more important works, M. Kaser’s Rdmisches
Privatrecht, and R6misches Zivilprozessrecht, A. Watson’s Law of
Obligations, Law of Persons, Law of Property and Law of Succes-
sion, D. Daube’s Forms of Roman Legislation, and F. Wieacker’s
Textstufen. A comparison of the second and third editions of the
Historical Introduction shows how conscientiously Professor Nich-
olas has performed his task. Several parts of the book, such as
the exposition of the origins of the formulary system (second edi-
tion pp. 226-233, third edition pp. 218-225) and the chapter on
“Criminal Law in the Republic” (second edition pp. 321-331, third
edition pp. 305-320) have been practically rewritten. The list of
abbreviations, an indication of the range of the literature consulted,
has grown from four and a half to twelve pages.
It is remarkable how well the numerous changes that had to
be made have been blended into the original text. There is no
McGILL LAW JOURNAL
[Vol. 19, No. 4
impression of patch work, no sensation of bumps or jars, and the
felicitous style and format which made the original work such a
pleasure to read have been fully preserved. In Jolowicz-Nicholas,
one of the classic English works on Roman law will live on.
H.R. Hahlo *
* Director, Institute of Comparative Law, McGill University.
