Problems of High Altitude or Space Jurisdiction

• Author: H.B. Jacobini
• Published date: 01 December 1953
• Date: 01 December 1953
• DOI: http://doi.org/10.1177/106591295300600403
• Subject Matter: Articles

PROBLEMS OF HIGH ALTITUDE
OR SPACE JURISDICTION
H. B. JACOBINI
University of Alabama
INTRODUCTION
NTERNATIONAL aviation law, one of the most recently developed
)) areas of the law of nations, stands on the threshold of tremendous
expansion due, in part, to the scientific developments in rocket engineer-
ing. The international law of aviation in itself, however, has an interesting
history’ which has significant political portents for the uncharted sea ahead.
In the three decades following 1889 two basic theories pertinent to this
subject were widely debated among students of the field.
One group, led by the Frenchman, Fauchille, based its opinion on the
Roman law view that the air is free, a res nullius, and open to everyone’s
use. This group stressed the similarities between the air and the high seas
and argued that the air was free to all for aviation and telegraphic purposes.
This position was later modified to allow for some precautions in the
interests of national security.
The other group, whose able spokesman was the Englishman, West-
lake, held the thesis that the basic element of concern was not air but air,
space. This school emphasized that while provision might be made for the
innocent passage of aircraft, the basic principle should be to assure security
by assuming national sovereignty over the superjacent airspace. This view
was grounded in the ancient English legal maxim, cujus est solum ejus est
usque ad coelum, which in Blackstone’s view meant that &dquo;Land hath also,
in its legal signification, an indefinite extent, upwards as well as down-
wards.&dquo; 2
Although as late as 1910 neither principle had become established
in international law, a Franco-German agreement in 1913 assumed the
national sovereignty position and during World War I it came to prevail
generally. This principle of the law of nations, developing in an era of
1
On this general subject see G. H. Hackworth, Digest of International Law (Washington, D.C.: Gov’t.
Printing Office, 1940-43), Vol. IV, pp. 357-69; C. Q. Christol, Jr., Transit by Air in International
Law (thesis, University of Chicago, 1941); H. G. Hotchkiss, A Treatise on Aviation Law (New
York: Baker, Voorhis &
Co., 1938). For earlier studies see S. E. Baldwin, "The Law of the
Airship," American Journal of International Law (1910), pp. 95-108; A. K. Kuhn, "The Begin-
nings of an Aerial Law," American Journal of International Law (1910), pp. 109-32; A. S. Hershey,
"The International Law of Aerial Space," American Journal
of International Law (1912), pp. 381-88.
See also H. B. Jacobini, "International Aviation Law: A Theoretical and Historical Survey,"
Journal of Public Law (Vol. II, No. 2).
2 William Blackstone, Commentaries on the Laws of England, Vol. II, p. 18. It is well to note that the
maxim and the concept of airspace sovereignty are not altogether compatible for airspace (i.e.,
space occupied by air) extends upward only a short distance at best (at 120 miles up air friction
reputedly becomes negligible) whereas the maxim suggests infinity. On the origin of the maxim
see J. C. Cooper, "Roman Law and the Maxim Cujus Est Solum in International Air Law,"
McGill Law Journal (Autumn, 1952), pp. 23-65.
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insecurity, was determined by the exigencies of national security, and it
was soon written into the Paris Convention of 1919, the first major inter-
national accord on aerial navigation. It was reiterated in the Havana and
Madrid agreements, as well as in the prevailing Chicago Convention of
1944, where it is stated that &dquo;The contracting States recognize that every
State has complete and exclusive sovereignty over the air-space above its
territory.&dquo; 3
’
While national sovereignty over the superjacent airspace has become
the cardinal principle of the international law of aviation, it must be
realized that in its municipal law origins this rule was concerned with such
prosaic matters as prohibiting the erection of &dquo;any building, or the like,
to overhang another’s land,&dquo; 4 and that in the realm of international law
it evolved in an era when the biplane and dirigible were in vogue and
when the possibility of space travel seemed a fantastic dream at best. One
must ask now, however, in the light of the potentially enormous expansion
of the scope of aviation, whether this principle can be continued in any
absolute sense or whether -
and if so what type -
limitations are ap-
propriate.
OUTLINE OF THE BASIC PROBLEMS AND LITERATURE
To the more imaginative readers of Buck Rogers-type literature the
looming possibilities of space5 travel may be commonplace, but to many
laymen the implications of the recent scientific advancements dealing with
possible expeditions into space have been at least mildly disconcerting.
From the standpoint of the student of international law the problem is
one which has scarcely been touched upon, but it will be a problem of great
momentousness if and when man does conquer space.
The ability to travel beyond the more customary altitudes will pose
a number of legal questions which as yet have no conclusive answers.
Among these are the following: (1) Are there limits to the principle of
national control over the superjacent...