THE LE-AL STATUS OF THE AIRSPACZ
LN THE LIGHT OF PROGRESS iN AVIATIOIN AND
ASTRONAUTICS
Dr. Eugene P6pin*
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 jet aircraft flying
at an altitude approximately 7Y 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 2 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.3 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
*Director of the Institute of International Air Law of McGill University.
1A communication on the subject has been made by the author before the “Acadimie
des Sciences morales et politiques” in Paris on 24th September, 1956.
2The U.S.A. communication, prepared by the U.S. National Committee for the I.G.Y.,
concerns the USNC – IGY Rocketry and Satellite programs.
3E.G. Studies of a minimum orbital unmanned satellite of the Earth, by D. T. Gold-
man and S. F. Singer: Temperature problems of satellites, by S. F. Singer; the Van-
guard 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.
No. 1]
LEGAL STATUS OF AIRSPACE
on the “Basic concepts of space law.” 4 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 pre-
pared by Professor John C. Cooper.5 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. 6 On the first of September,
at Dubrovnik, the International Law Association decided, upon a report of
Prof. D. Goedhuis 7 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
1944,9 which created the International Civil Aviation Organization (I.C.A.O.),
one of the specialized agencies of the United Nations, with a present member-
ship of seventy States.
4Pamphlet of 72 pages in mimeograph form.
5See Proceedings of the 1956 Annual Meeting of the Society. – Previously Professor
in Mexico-City, a paper on “High Altitude Flight and
Cooper presented in 1951,
National Sovereignty”, published in 4 International Law Quarterly (1951), p. 411.
6Report of the Legal Commission of the Assembly. I.C.A.O. Doc. A. 10 Le 15, p. 6,
par. 12.
7Report on “the Limitation of Air Sovereignty”, and comments thereon by Dr. E.
Pipin and Prof. J. C. Cooper.
8The 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”, Zeitsehrift fur Luftrecht 1953 p. 31.
9U.N. Treaty Series Vol. 15, no. 102.
McGILL LAW JO URNVAL
f Vol. 3
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?40
The expression “espace a&ien” which is used in the official French
translation approved by ICAO, n 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 back to the origin of the
word “airspace”, the meaning of “espace a~rien” should not give rise to
confusion. In fact, the Chicago Convention simply reproduces –
although
a provision 12 of the Paris Con-
the Conference did not discuss the matter –
vention of 1919 relating to the Regulation of Air Navigation. This Conven-
tion was prepared in three texts, each being equally authentic. The French
and Italian texts used the term “espace atmospherique” and “spazio atmo-
sferico” (atmospheric space), whereas the English text used the term “air
space”. The “airspace” of the Chicago Convention therefore corresponds to
the “espace atmospherique” 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 atmospherique”13 and
sometimes the term “espace a~ien” 4 Laws of some States refer prudently
to the “space” above their territory, 15 and one State, Nicaragua, specified
in its 1950 Constitution that its national territory included the “atmospheric
space” and the “stratosphere”.
Consequently, posifive 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 ;16 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 Organization by the
‘ 0Art. 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 . . .”
2’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.
2Article 1.
lae.g. Bolivia, Colombia, Ecuador, Spain.
14e.g. Chile, Dominican Depublic, Egypt, Iran.
15 Brazil.
16See C. Wilfrid Jenks, “International Law and Activities in the Space”, International
and Comparative Law Quarterly (1956), p. 99-119.
No. 1]
LEGAL STATUS OF AIRSPACE
Chicago Convention, 17 and certain decisions taken by States in implement-
ation 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.’ s 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 Conven-
tion, 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?
Over the high seas, there is freedom of air traffic’ 9 in the sense that air-
crafts 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, 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
arArt. 54 of the Chicago Convention: “The Council shall . ..
(1) Adopt..
national Standards and recommended practices; for convenience, designate
Annexes to this Convention”.
18 Zones defined in and established in accordance with Annex 11 (Air Traffic Services),
. inter-
them as
under recommendation of Regional Conferences.
1OProvisional articles concerning the regime of the high seas prepared by the Inter-
national 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.”
2OArts. 12 of the Convention:
48
this Convention . – . ”
over the high seas, the rules in force shall be those established under
McGILL LAW JOURNAL
[Vol. 3
there has been declared an enormous danger area covering 140 of longtitude
and 80 of latitude.2 ‘ 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.22
To summarize, therefore, there are a certain number of points in con-
nection 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 in-
clude it in various Annexesm which, however, do not have the same mand-
atory 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 atmos-
pheric space.24
. According to this definition and to a classification of aircraft contained in
one of the Annexes, aircraft are deemed to include balloons, airships, aero-
planes, 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, 25
and that ICAO has the power to amend a definition or classification contained
in an Annex.28
21Notice to Aviators, 12th March 1956.
22These 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 In-
stitute of International Air Law is in the printing stage with the Queen’s Printer in
Ottawa.
2 3Annexes 6, 7 and 8.
24Cooper, loc. cit. in note 5 above, p. 413: Oscar Schachter. “Legal Aspects of Space
Travel”, 11 Journal of the British Interplan’tary Society (1952), p. 14. – Opposite
view: B. Cheng “Recent Developments in Air Law”, Current Legal Problems 1956 p. 212.
(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.”
2 5 e.g. U.S.A.
26Art. 54 (m) of the Convention: “The Council shall .. . (m) Consider recommenda-
tions of the Air Navigation Commission for amendment of the Annexes and take
action . . . ”
No. 1]
LEGAL STATUS OF AIRSPACE
As regards true aircraft, some are the subject of special convention pro-
visions, 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 an-
nounced no protest had been made and that, furthermore, these balloons,
intended for study of methods
which were actually “miniature satellites”
to be used during the Geophysical Year, travelled at heights far above the
levels at which commercial aircraft operate.2 7 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. How-
ever, 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 pos-
sible interference with civil aviation. Furthermore, the return to earth of
if they are not disintegrated beforehand – may conceivably
such devices –
cause damage obviously not covered by the conventions on compensation
for damage 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
27Note 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.
McGILL LAW JOURNAL
[Vol. 3
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 off Africa, more than 4,000 miles from
Florida. This test area, part of which extends over the high seas, is con-
sidered to be a danger area without upper limit and is the subject of
N.OTAMs.28
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 Inter-
national Committee of the Geophysical year.2
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
ICA.O 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.
in
Others, however, are considering the possibility of their sovereignty
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
28Agreement 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 1lth – 22nd July 1955 (not yet
published).*
29Haley, op. cit. in note (4), and7U.S.A. Note of 8th February, op. cit. in note (27).
No. 1]
LEGAL STATUS OF AIRSPACE
77
free.30 It would appear premature, however, to envisage any particular
division of space at this stage, since we are only beginning to acquire know-
ledge of the various zones of 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 them-
selves be outdistanced by technicians.
3 0Cooper, 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.
