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AIRSPACE RIGHTS OVER THE ARCTIC

       

by

       

John C. Cooper

        The determination of national airspace rights over

the Arctic presents a challenging and vital problem. It is a

problem that must be settled. It concerns directly the diplo–

matic, commercial, and military relations of those States

which face the Arctic — Canada, Denmark (through its owner–

ship of Greenland), Iceland, Norway, the USSR, and the United

States (through its ownership of Alaska). Indirectly it

affects every State with any pretense to long-range flying.

Potential air routes across the Arctic are the shortest

distance between important parts of the Northern hemisphere.

In no other area of the world is there still such lack of

certainty as to the rights of nations to fly.

        The basic rule of international air law, fixing

the legal status of airspace over the earth's surface may

be stated as follows:

        If any area on the surface of the earth,

whether land or water, is recognized as part of

the territory of a State, then the airspace over

such surface area is also part of the territory

of the same State. Conversely, if an area on the

002      |      Vol_XI-0061                                                                                                                  
earth's surface is not part of the territory

of any State, such as the water areas included

in the high seas, then the airspace over such

surface areas are not subject to the sovereign

control of any State and are free for the use

of all States.

        This is another way of saying that the old concept of

national territory as a two-dimensional area on the earth's

surface can no longer be accepted. National territory is

three-dimensional. The surface of the earth and the airspace

above cannot be separately treated. Together they must be

considered as a single political unit. Entry into the sur–

face areas under the control of a State or into the airspace

over such surface areas constitute equally entry into the

territory of the State. The background of this presently

accepted rule must be stated in order to understand the

problem of airspace rights over the Arctic.

        In the latter part of the nineteenth century and the

first decade of the twentieth century, doctrinal discussions

developed in western Europe as to the legal status of the

airspace. These were centered around the question as to whether

the airspace was part of the territory of the State below or

whether it was free to the navigation of all States as the high

seas are free for all vessels. Various solutions were proposed,

003      |      Vol_XI-0062                                                                                                                  
including those which would have held that a limited zone

immediately over the earth's surface was subject to the

sovereignty of the State below, but that the upper airspace

was free. These discussions, it must be understood, were

purely doctrinal. There is no evidence that any important

sovereign State ever disclaimed control of any part of the

airspace over its surface territories. In fact there is

ample legal evidence that State sovereignty in the airspace

has existed since Roman times.

        The first international attempt to settle diplo–

matically the extent of national airspace rights ended with

failure at the Paris Conference of 1910. Differences de–

veloped as to the extent to which foreign aircraft might

have privileges of flight in the airspace over national

territory. But not one of the European governments there

represented was ready to accept the theory that the airspace

over its territory was not part of its domain and thereby not

subject to its control.

        Concrete acts of the great powers soon thereafter

affirmed the existence of airspace sovereignty. Great Britain,

in the Air Navigation Acts of 1911 and 1913, stated its right

to set up prohibited areas in its territory over which no

foreign aircraft might fly and to control the terms under which

such foreign aircraft might enter the airspace over its lands

and waters. By an exchange of notes in 1913 between France and

004      |      Vol_XI-0063                                                                                                                  
Germany, provisions were agreed upon under which no military

aircraft of one nation could enter the airspace over the other

except on invitation , and the civil aircraft of one nation

were required to obtain a special permit from a consul of the

other before starting on a flight to the latter's territory.

These British Air Navigation Acts and the French-German air

traffic agreement demonstrate that each of these powers

claimed full right to control the airspace over its land

and water territories as against all other nations. This is

the exercise of external or national sovereignty in inter–

national law.

        The outbreak of World War I in Europe further affirmed

the existence of airspace sovereignty over national surface

territories. In a letter handed by the German Ambassador to

the French Foreign Minister on August 3, 1914 it was stated

that the German Empire considered itself at war with France.

Among the reasons given by Germany as a direct cause of the

war was the allegation that French military aviators had been

guilty of hostile acts on German territory and that they had

"openly violated the neutrality of Belgium by flying over the

territory of that country." In other words, Germany insisted

that the airspace over Germany was part of German territory

and that the airspace over Belgium was part of Belgian terri–

tory, and that the flight of French aircraft into Belgian air–

space constituted an invasion of Belgian territory and its

internationally guaranteed neutrality.

005      |      Vol_XI-0064                                                                                                                  

        Immediately after the outbreak of the war, various

European nations closed their air boundaries. During the

course of the war neutral states required belligerent aircraft

flying into the airspace over their surface territories to

land and be interned just as they required foot soldiers to

be interned when crossing land boundaries into neutral terri–

tory.

        During the meeting of the Peace Conference following

the war, an aeronautical commission was organized and charged

with preparing a convention for the regulation of air navi–

gation. Its legal sub-commission (on which the United States

was represented), in reporting a draft of the proposed con–

vention, said:

        "The first question placed before the Sub–

commission was that of the principle of freedom

or of sovereignty of the air .

        "... the opinion expressed in the Legal Sub–

commission is favorable to the full and exclusive

submission of the airspace to the sovereignty of

the subjacent territory. It is only when the

column of air hangs over a res nullius or communis ,

the sea, that freedom becomes the law of the air.

        "Therefore, the airspace is part of the legal

regime of the subjacent territory. Is this terri–

tory that of a particular State? Then the airspace

is subject to the sovereignty of that State. Does

it escape all sovereignty as the free sea? Then

the airspace is also free above the sea, as the sea

itself.

        "It results then that, by virtue of its sover–

eignty, the subjacent State, within its borders, can

forbid flight and, with greater reason, landing."

1

006      |      Vol_XI-0065                                                                                                                  

        The convention came into effect as the Paris Con–

vention of 1919 "relating to the Regulation of Aerial

Navigation." It stated in Article 1 the basic problem of

airspace sovereignty:

        "The High Contracting Parties recognise that

every Power has complete and exclusive sovereignty

over the air space above its territory.

        "For the purpose of the present Convention

the territory of a State shall be understood as

including the national territory, both that of

the mother country and of the colonies, and the

territorial waters adjacent thereto." 2

        This Convention was later either ratified or adhered

to by all of the European powers except Russia and Germany,

and also by the British Dominions, including Canada. Its

statement of airspace sovereignty became an accepted part

of international law. The Convention does not purport to

grant rights of sovereignty reciprocally between the States

which are parties to the Convention. Instead it states the

existence of an admitted rule that every State, whether a

party to the Convention or not, "has complete and exclusive

sovereignty over the airspace above its territory."

        The United States signed, but did not ratify, the

Paris Convention of 1919. This refusal to ratify had nothing

to do with the fact that the convention acknowledged the existence

of airspace sovereignty as the fundamental principle of inter–

national air law. The United States has in fact always been one

007      |      Vol_XI-0066                                                                                                                  
of the chief proponents of the doctrine of airspace sovereignty.

As early as 1912 in the unofficial but authoritative Inter–

national Law Situations prepared by The United States Naval

War College and published by the Government Printing Office,

it was stated "that physical safety, military necessity,

the enforcement of police, revenue, and sanitary regulations

justify the claim that a State has jurisdiction in aerial

space above its territory," and that "it would seem wise,

therefore, to start from the premise that air over the

high seas and territory that is res nullius is free, while

other air is within the jurisdiction of the subjacent

state..." 3

        This position was affirmed by the conduct of the

United States during World War I. By proclamation of November

13, 1914, relating to neutrality of the Panama Canal Zone,

"aircraft of a belligerent power, public or private," were

forbidden to pass through the airspace above the lands and

waters within the jurisdiction of the United States at the

Zone. 4 By another proclamation of February 28, 1918, all

flying was prohibited unless specially licensed if the flight

was to pass over "any place or region within the jurisdiction

or occupation of the United States which may be designated by

the President as a zone of war-like operations or of war-like

preparations." 5 The whole of the United States and its terri–

torial waters and possessions were designated as such a zone,

008      |      Vol_XI-0067                                                                                                                  
thus assuming complete national control in the airspace over

all the lands and waters of the United States.

        The rule of airspace sovereignty became part of the

peace time law of the United States with the passage of the

Air Commerce Act of 1926, asserting "that the Government of

the United States has to the exclusion of all foreign nations

complete sovereignty of the airspace over the lands and waters

of the United States including the Canal Zone." 6 In 1928 the

United States assisted in drafting and later signed and ratified

the Havana Convention which in Article 1 recognizes "that every

State has complete and exclusive sovereignty ever the airspace

above its territory and territorial waters." 7 Again in 1938,

the United States affirmed the same principle in the present

Civil Aeronautics Act. 8

        As parties to the Paris Convention of 1919 all of the

States then directly interested in the Arctic (except the United

States and the USSR) affirmed the existence of airspace sovereignty.

The United States took the same position in its statutes and as a

party to the Havana Convention. The Chicago Convention of 1944

has now taken the place of both the Paris Convention and the

Havana Convention. It states the basic existing principles of

air law for most of the world except the USSR. Among the parties

to the Chicago Convention are Canada, Denmark, Iceland, Norway and

the United States — directly interested in the Artctic. The

provisions of this convention directly applicable to the status

009      |      Vol_XI-0068                                                                                                                  
of the airspace are the following:

        " Article 1 : The contracting States recognize

that every State has complete and exclusive sovereignty

over the airspace above its territory.

        " Article 2 : For the purposes of this Convention

the territory of a State shall be deemed to be the

land areas and territorial waters adjacent thereto

under the sovereignty, suzerainty, protection or

mandate of such State." 9

        The convention also recognizes that airspace over the

high seas is not part of the territory of any State. In

Article 12 it provides that each contracting State undertakes

to adopt measures to insure that aircraft flying over its terri–

tory and that every aircraft carrying its nationality mark

wherever such aircraft may be shall comply "with the rules and

regulations relating to the flight and maneuver of aircraft

there in force," and that "over the high seas, the rules in

force shall be those established under this Convention." In

other words, over the high seas no single State has sovereign

power to make rules applicable to the flight of aircraft of

other States. Such flight can be regulated only by agreement

between several States and the rules thus agreed will apply

only to the States which have adopted such rules.

        The fact that the USSR did not become a party to the

Paris Convention nor the Chicago Convention must not be taken

to mean that the USSR refused to accept the principle of air–

space sovereignty. The facts are quite the contrary. As early

010      |      Vol_XI-0069                                                                                                                  
as the Decree of the Council of Peoples' Commissaries adopted

January 17, 1921 10 this principle was tacitly recognized.

Foreign aircraft were permitted to cross Soviet boundaries

only by special permit and subject to special regulations.

Other later decrees clarified the reservation by the Soviet

Government or the right to regulate air navigation over

Soviet surface territories. With the promulgation on

April 27, 1932 of the Air Code, the Soviet position finally

was made very clear. The directly applicable provisions

are as follows:

• "1. The air code is in force throughout the
  
  land and fluvial territory of the Union of S.S.R.
  
  and the territorial waters established by the laws
  
  of the Union of S.S.R., and within the air space
  
  of the Union of S.S.R.
  
• "By the air space of the Union of S.S.R. is
  
  understood the air space above the land and fluvial
  
  territory of the Union of S.S.R., and above the
  
  territorial waters established by the laws of the
  
  Union of S.S.R.
  
• "2. To the Union of S.S.R. belongs the
  
  complete and exclusive sovereignty over the air
  
  space of the Union of S.S.R." 11
  

        It is apparent from the provisions of this Air Code

that no difference exists between the USSR and the other States

facing the Arctic as to airspace sovereignty, except in a

possibly important difference in the definition of what consti–

tutes surface territory. It will be noted from the citations

011      |      Vol_XI-0070                                                                                                                  
above that in the Chicago Convention the territories of a State

are defined to include "the land areas and territorial waters

adjacent thereto," while in the USSR Air Code the airspace of

the USSR includes the airspace "above the territorial waters

established by the laws" of the USSR. This would appear to

constitute a reservation by the USSR of the unilateral right

to declare as "territorial waters" those waters which it may

by its law determine to have such character, while in the

Chicago Convention territorial waters are only these "adjacent"

to land territories.

        In summary, it may be said that international air

law applicable to the question of the extent of national air–

space sovereignty now includes the following rules:

• a. Each State has complete and exclusive
  
  sovereignty over the airspace above its surface
  
  territory and such airspace is in fact an integral
  
  part of national territory.
  
• b. Surface territory for the purpose of
  
  airspace sovereignty includes territorial waters.
  
  Airspace over such territorial waters is in ex–
  
  actly the same legal status as airspace over land
  
  territory.
  
• c. Every sovereign State has complete control
  
  of the airspace included in its territory, has the
  
  exclusive right to fly in that airspace, and may
  
  exclude all foreign aircraft or admit them on such
  
  terms as it sees fit. The aircraft of one state
  
  do not have in the airspace of another S tate any
  
  right of entry or innocent passage and will only
  
  be admitted to such airspace with the consent of
  
  the State having sovereign control. No right of
  
  innocent passage in the airspace over territorial
  
  waters exists in favor of foreign aircraft although
  
  012      |      Vol_XI-0071                                                                                                                  
  such rights of innocent passage does exist in
  
  the territorial waters themselves for foreign
  
  sea-going vessels in time of peace. To this
  
  extent the law of the air and the law of the
  
  sea are not in accord.
  
• d. Airspace over the high seas and over
  
  surface territory which is not part of the
  
  territory of any States is free for the use of
  
  the aircraft of all States.
  

        From the foregoing rules the extent and char–

acter of national airspace rights over the Arctic can be

determined. But such determination requires a decision

as to what constitutes the Arctic surface territory, both

land and territorial waters, of the interested States. On

this depends the extent of the right of such States to con–

trol the flight of other States and the future of Arctic

international flight.

        The scope of this article will not permit an ex–

tended discussion of all of the questions entering into any

definitive statement of national surface sovereignty rights

in the Arctic. 12 Enough must be said, however, to lay the basis

for a statement of at least presumptive airspace rights.

        The normal rules of international law require

that a State, to acquire sovereignty over lands not pre–

viously part of the territory of any other State, must

show discovery and later effective possession with notice

to other States. Also no State may claim sovereignty in

those water areas known as the high seas where every State

has equal rights. The primary difficulty in stating the

extent of national sovereignty in the Arctic rests on the

013      |      Vol_XI-0072                                                                                                                  
decision as to whether the normal rules of international

law apply, and if not, how land territory may be acquired

and what areas shall be treated as part of the high seas.

It is necessary to decide:

• 1) whether to accept the so-called "sector"
  
  theory under which a State facing toward
  
  the North Pole is supposed to have
  
  sovereign rights in the triangular area
  
  between its recognised territory and
  
  the North Pole itself irrespective of
  
  the normal rules of international law;
  
  or
  
• 2) if the "sector" theory is not accepted,
  
  whether (a) the rules of international
  
  law have been so modified as to permit
  
  the existence in the Arctic of sovereignty
  
  in land territories which have never been
  
  "effectively occupied" by the State
  
  claiming such sovereignty, and (b) whether
  
  any part of the vast ice-covered water
  
  areas in the Arctic beyond the limit of
  
  normal territorial waters may be treated
  
  as subject to the sovereignty of a par–
  
  ticular State, or whether such areas
  
  should be considered as part of the high
  
  seas and not, therefore, subject to the
  
  sovereignty of any State.
  


014      |      Vol_XI-0073                                                                                                                  

        The sector theory of Arctic sovereignty is a

development of the twentieth century. It was first

definitively stated in a debate in the Canadian Senate.

On February 20, 1907, Senator Poirier proposed the

following resolution:

        "That it be resolved that the Senate

is of opinion that the time has come for

Canada to make a formal declaration of

possession of the lands and islands

situated in the north of the Dominion,

and extending to the north pole."

        He stated, in the debate, that:

        "... in future partition of northern

lands, a country whose possession today

goes up to the Arctic regions, will have a

right, or should have a right, or has a

right to all the lands that are to be found

in the waters between a line extending from

its eastern extremity north, and another

line extending from the western extremity

north. All the lands between the two lines

up to the North Pole should belong and do

belong to the country whose territory abuts

up there." 13

        The resolution was not adopted. But it evidenced a

growing feeling that Canada had special rights in areas

north of its then occupied territories. During the

previous year, 1906, the first edition of the Canadian

Atlas had been officially published under the title

"Department of the Interior, Canada, Honourable Frank

Oliver, Minister, 1906, Atlas of Canada, Prepared under

the Direction of James White, F.R.G.S., Geographer."

In this Atlas, map 1 and some of the other maps show

dotted lines running towards the North Pole - one on the

015      |      Vol_XI-0074                                                                                                                  
141st meridian, the other roughly on the meridian of

60°. In the same year the Canadian Parliament had

amended the Fisheries Act of 1904 so as to require that

a license fee be payable for hunting whales in Hudson

Bay "inasmuch as Hudson Bay is wholly territorial water

of Canada." 14 In 190 7 9 a government expedition erected a

tablet on Melville Island "to commemorate the taking

possession for the Dominion of Canada of the whole Arctic

Archipelago lying to the north of America from longitude

60 degrees west to 141 degrees west up to latitude 90

degrees north," 15 - apparently a notice of claim to ter–

ritorial rights within the sector described, certainly

covering all islands and also perhaps the waters in the

area of the archipelago. The Atlas of 1906, the statement

of Poirier in the Canadian Senate in 1907, the tablet

erected on Melville Island in 1909, together evidence

Canadian support of the sector theory. This was further

emphasized in 1921 by a note addressed to the Government

of Denmark holding that any discoveries which the Danish

explorer, Rasmussen, might make north of Canada would be

considered as not affecting the rights of Canada in such

territories. 16

        In 1934 the United States semi-officially took

cognizance of the sector theory. Denby, then Secretary

of the Navy, testifying in January 1924 before the House

Committee on Naval Affairs as to a proposed flight of the

U.S. Navy dirigible "Shenandoah" to the Arctic, and dis-

016      |      Vol_XI-0075                                                                                                                  
cussing possible lands north of Alaska, said:

        "And furthermore, in my opinion it

is highly desirable that if there is in

that region land, either habitable or not,

it should be the property of the United

States. ... And, for myself, I cannot

view with equanimity any territory of that

kind being in the hands of another Power." 17

        The proposed voyage did not take place. But Denby's

remarks may have had international repercussions for it

must be noted that later in the same year the USSR clarified

its Arctic territorial claims.

        In a note of November 4, 1924 to all other

States 18 the USSR affirmed a prior notification given

in 1916 by the Russian Imperial Government announcing

the incorporation into the Russian Empire of various

Arctic islands north of the Russian and Siberian main–

land. 19 The note of 1924 evidenced a general claim to

unoccupied islands in the Soviet sector, and perhaps

to undiscovered lands.

        The Canadian position was restated more

formally in 1925. The Minister of the Interior, Mr.

Stewart, said in the Canadian House of Commons:

        "Mr. Speaker, this Government has been

very much alive to what we claim to be the

possessions of Canada in the northern ter–

ritory adjacent to the Dominion. Indeed, I

made the statement in the House the other

evening that we claimed all the territory

lying between meridians 60 and 141. This

afternoon, when dealing with the estimates

of the Department of the Interior, I propose

to bring down a map to make it clear what

017      |      Vol_XI-0076                                                                                                                  
precautions we are taking to establish

ourselves in that territory, and to

notify the nationals of foreign countries

passing over it that we think Canada should

be advised of their plans and that they

should ask for permits from the Canadian

Government." 20

        In the same debate he stated that Canada claimed juris–

diction to the North Pole. By an Order in Council issued

the following year (1926) it was provided that all persons

thereafter entering the territories of the Canadian Arctic

should secure permits. 21

        Also in 1926, perhaps as a result of the

definitive statement of the Canadian position, the

USSR adopted a formal decree covering its territorial

claims in the Arctic. This decree is more specific than

the 1924 diplomatic note. The decree states:

        "The Presidium of the Central Executive

Committee of the Union of Soviet Socialist

Republics decrees: -

        "All discovered lands and islands, as

well as all those that may in the future be

discovered, which are not at the date of the

publication of this decree recognised by the

Government of the U.S.S.R. as the territory

of a foreign Power, are declared to be ter–

ritories belonging to the U.S.S.R., within

the following limits:

        "In the Northern Arctic Ocean, from the

northern coast of the U.S.S.R. up to the

North Pole, between the meridian 32°4′35"

east longitude from Greenwich, passing along

the eastern side of Vaida Bay through the

triangulation mark on Kekursk Cape, and

meridian 168° 49′ 30″ west longitude from

Greenwich, passing through the middle of

the strait which separates Patmanov and

Kruzenstern Islands of the Diomede group of

islands in the Behring Straits." 22

018      |      Vol_XI-0077                                                                                                                  
This is the most formal action taken by any State

affirming the sector principle. It is a distinct claim

of sovereignty as against all the world over occupied,

unoccupied, and even undiscovered land territories in

the Soviet sector. The decree has never been repealed.

        Construed strictly, the decree of 1926 applies

only to lands in the Soviet sector. But authoritative

Soviet writers have given it a much wider application.

Korovin, writing soon after the decree was issued, stated

that "this Decree must be understood to include in the

conception of 'lands and islands,' as expressed by Soviet

legislators, also ice formations and the seas surrounding

them, for otherwise the polar sector adjacent to the U.S.S.R.

would have to be considered as an open sea with all the

consequences resulting from such an interpretation." 23

Sigrist (1928) insisted that "in the spirit of the Decree

we must maintain that the whole region from the Soviet

mainland to the Pole is Soviet possession ..." 24 He

included water areas.

        Without question the most authoritative

statement was made by Lakhtine. He was Secretary–

Member of the Committee of Direction of the Section of

Aerial Law of the Union of Societies "Ossoaviachim" of

the U.S.S.R, and, as the U.S. Naval War College commen–

tator said, he "would be expected to represent the Soviet

point of view at the time when he was writing in 1930." 25

019      |      Vol_XI-0078                                                                                                                  
Lakhtine's discussion of rights over the Arctic regions

was originally published in 1928 in Moscow in Russian by

the Soviet Commissariat of Foreign Affairs. 26 His views

were republished in French in 1929 27 and in English in

1930. 28 His position may be summarized as follows:

that in polar regions the sector principle must be ac–

cepted; t h at "regardless of discovery and regardless of

effective occupation, the discovered lands and islands

belong as a matter of fact to States in the region of

attraction in which they are situated;" 29 that the "lands

and islands being still undiscovered are already presumed

to belong to the national territory of the adjacent Polar

State in the sector of the region of attraction in which

they are to be found;" 30 that "floating ice should be

assimilated legally to open polar seas, whilst ice

formations that are more or less immovable should enjoy

a legal status equivalent to polar territory;" 31 that

the "legal status for the high seas of the Arctic, is, in

its essential part, nearly identical with that of 'terri–

torial waters;'" 32 that as "Polar States exercise sov–

ereignty over known and unknown territory lying in their

sectorial regions of attraction, and over more or less

immovable permanent ice formations covering the north

part of the Arctic Ocean, as well as over national and

territorial waters, ... the Polar States exercise sov–

ereignty also over the atmosphere above these territories,

020      |      Vol_XI-0079                                                                                                                  
ice and waters" and hence "each Polar State exercises

sovereignty over the aerial space above the whole region

of attraction of its sector." 33

        In arguing that polar States should have

sovereignty even in the airspace over water areas of the

Arctic Ocean free from ice, Lakhtine said:

        "Inasmuch as the legal status of these

water areas is closely assimilated to that

of territorial waters over which a State

does exercise a limited sovereignty; and

since, according to the international law

of today a litteral State exercises unlimited

jurisdiction over the atmosphere above its

territorial waters, there is no reason for

treating the question of the legal status of

these Arctic air regions in a different

manner.

        "This argument is strengthened when we

realize the impossibility of using airships

for economic purposes exclusively in this

part of Arctic aerial space. If an airship

should be used for operations connected with

fishing and hunting in these open waters, it

would be as necessary to obtain the per–

mission of the litteral State as it would be

to obtain permission for fishing and hunting

from vessels. Moreover, it is impossible

to use the air for aerial communication

without crossing ice regions, territorial

waters and territories belonging to a State

which exercises sovereignty over the

atmosphere above." 34

        Also in further support of his conclusion that polar States

exercise sovereignty over the airspace above the whole

region of the sector, Lakhtine quotes the 1928 statement

of Breitfuss as follows:

        "Within each of these sectors, an

adjacent State exercises its sovereignty

over discovered as well as over undiscovered

021      |      Vol_XI-0080                                                                                                                  
lands and islands, this sovereignty being

exercised not only over land, but also to

a certain extent (yet to be precisely fixed

internationally) over seas covered with ice,

surrounding these lands and islands and as

well over air regions above this sector." 35

        The Government of the USSR has not in terms

repudiated the position taken by Korovin, Sigrist and ?

Lakhtine in support of the theory that the USSR and other

polar States are sovereign over the entire land and water

areas and airspace over their respective sectors. But

the actual course of subsequent events creates doubts as

to whether the USSR supports the sector principle beyond

the strict terms of the decree of 1926. 36 In the first

place the international agreement which Breitfuss assumed

necessary in order to fix the status of sovereignty over

the polar seas has not been accomplished or even sought.

Instead the Soviet Government has, by its legislation,

stated its claim to territorial waters. By a decree of

May 24, 1921 the pre-revolutionary three mile limit for

territorial waters along the coast was changed to a twelve

mile limit in the White Sea and the Arctic Ocean. 37 By

the statute of June 15, 1927 on "Protection of the

Boundaries of the U.S.S.R." this twelve mile limit was

made applicable to all the coastal waters of the Soviet

Union except where expressly provided otherwise by inter–

national agreement. 38 It must be assumed that this twelve

mile limit for territorial waters became thereby applicable

022      |      Vol_XI-0081                                                                                                                  
to territorial waters around the land areas claimed by

the USSR in the sector decree of 1926. In 1932, by the

adoption of the Air Code, as previously cited in this

article, the USSR declared that "by the air space of the

Union of S.S.R. is understood the air space above the

land and fluvial territory of the Union of S.S.R., and

above the territorial waters established by the laws of

the Union of S.S.R. " [italics supplied] From this it

would appear that the USSR has limited its airspace claims

with great care and that these claims do not extend beyond

the airspace over lands and waters within the Soviet twelve

mile limit. At least other States are certainly entitled

to rely upon this construction, notwithstanding the broad

claims sought to be established by Lakhtine.

        Further doubt as to whether the Soviet Govern–

ment supports the sector theory as a basis of airspace

sovereignty beyond the terms of the decree of 1926 is

furnished by its action in 1937 in seeking to take physical

possession of a north polar area. Lakhtine had called

attention to the fact that the North Pole is an inter–

section of the meridian lines of the sectors into which

he divided the Arctic, stating:

        "Neither legally, nor in fact does it

belong to anyone. It might be represented

as an hexahedral frontier post on the sides

of which might be painted the national colors

of the State of the corresponding sector." 39

023      |      Vol_XI-0082                                                                                                                  
If Lakhtine expressed the Soviet views as to the polar

seas (and as to airspace above), then no occupation of

any part of the polar seas was needed to establish Soviet

title within its sector, and no Soviet entry into sectors

of other States would be legally justified. Nevertheless,

in preparation for the trans-polar flights which later

took place, the Soviet Government dispatched an expedition

by air to the north polar area. This expedition landed

on May 21, 1937 near the Pole seeking to establish a

permanent base for radio and meteorological purposes.

According to press dispatches from Moscow, the Soviet

Government immediately claimed sovereignty over the polar

area on the basis that it was the first to establish a

permanent settlement in the vicinity. 40 No reference to

the sector theory to support such claim seems to have been

made. In fact it has been stated that the settlement was

originally located on pack ice which under the sector

theory, was in Canadian territory. 41 But by August 8,

1937 this "permanent" base had drifted 138 miles toward

Greenland. 42 By August 29th the camp had drifted 330

miles. 43 By February 6, 1938 it had apparently drifted

about 1100 miles. 44 When the party was rescued on

February 19, 1938, the total drift in 274 days had been

approximately 1500 miles. 45 The settlement originally

established under the Soviet flag in the "Canadian sector"

024      |      Vol_XI-0083                                                                                                                  
and was rescued from the floating pack ice near the coast

of Greenland in the "Danish sector." Nothing could demon–

strate more clearly that not even the Soviet Government

relies upon the sector theory as a basis for international

determination of surface or airspace rights over the Arctic

Ocean. In fact the attempted settlement on the polar ice

appears to be an abandonment of the sector theory and a

reliance upon the principles of "effective occupation"

as the basis of territorial sovereignty.

        The States other than the USSR which face the

Arctic (Canada, Denmark, Iceland, Norway and the United

States) are parties to the Chicago Convention on Inter–

national Civil Aviation of 1944 (cited previously in

this arcticle). By this convention each contracting state

recognizes that every State has complete and exclusive

sovereignty over the airspace above its land areas and

the territorial waters adjacent thereto. Inherent in

the convention is the accepted doctrine that airspace

over lands which are under the sovereignty of no State

and airspace over the high seas is not under the sover–

eignty of any State and is free to the use of all States.

Unless by unwritten and customary international law the

parties to the Chicago convention are in agreement that

a special regime (such as the sector theory) exists in the

Arctic and that this special regime shall determine what

areas constitute national lands and territorial waters in

025      |      Vol_XI-0084                                                                                                                  
the Arctic area, the only basis which can be used to determine

territorial surface rights in the Arctic (and therefore air–

space rights) are the normal and generally accepted rules of

international law as to what constitutes land territory,

territorial waters, and the high seas.

        But it is quite apparent that neither the sector

theory nor any other special regime as to Arctic surface

sovereignty has been accepted into international law by the

parties to the Chicago Convention. While the sector

principle has been semi-officially supported in Canada

as to discovered and undiscovered lands in the so-called

"Canadian sector," the extent of the Canadian claims to

control water areas in the sector beyond the accepted three

mile limit of territorial waters has never been stated. The

sector principle has been authoritatively denied by both the

United States and Norway directly interested in the Arctic

and does not appear to have been accepted by any other State.

        As to the United States, a suggestion was made

in 1929 to President Hoover that the Government should

initiate an international arrangement to partition the

Arctic between the United States, Canada, Denmark, Norway

and Russia. The proposal was referred to the U.S. Navy

Department. The Secretary of the Navy officially replied

to the Secretary of State on September 23, 1929 to the

effect that the action proposed:

• "(a) Is an effort arbitrarily to divide
  
  up a large part of the world's area amongst
  
  several countries;
  


026      |      Vol_XI-0085                                                                                                                  

• (b) Contains no justification for claiming
  
  sovereignty over large areas of the world's
  
  surface;
  
• (c) Violates the long recognized custom
  
  of establishing sovereignty over territory by
  
  right of discovery;
  
• (d) Is in effect a claim of sovereignty
  
  over high seas, which are universally recognized
  
  as free to all nations, and is a novel attempt
  
  to create artificially a closed sea and thereby
  
  infringe the rights of all nations to the free
  
  use of this area.
  

        I, therefore, consider that this government

should not enter into any such agreement as

proposed." 46

        This authoritative statement refutes any impli–

cations which might be drawn from the 1924 testimony of

Secretary of the Navy Denby, 47 and which seemed to give

some support to the sector theory. It must also be re–

called that Secretary of State Hull on November 13, 1934

advised the British Ambassador, (in a discussion as to

discoveries in the Antarctic) that "in the light of long

established principles of international law... I can not

admit that sovereignty accrues from more discovery un–

accompanied by occupancy and use." 48 As further indication

of the United States position, the U.S. Naval War College

in 1937, when considering problems as to polar areas,

discussed the possibility of a State with land bordering

on the polar area seeking to prohibit the entrance of

aircraft polarward from its coast. It held that no such

right existed - thus in substance denying the validity of

the sector principle as applicable to polar water areas

027      |      Vol_XI-0086                                                                                                                  
beyond the normal three mile limit from the coast line of

the State facing the Arctic and the airspace over such

areas, saying:

        "(c) The right of a state to prevent or

to regulate the movement of foreign aircraft

is limited to the air within its jurisdiction

which extends to the air above its land and

maritime boundaries. Generally accepted

maritime boundaries now extend at least to

three miles from the low-water mark along the

coast and three miles outside the limits of

its bays. Whether the direction is toward

the equator or toward the pole makes no

difference —the jurisdiction extends sea–

ward for three miles." 49

        Clearly the United States has never agreed to a special rule

applicable to the Arctic for a determination of what consti–

tutes land and territorial waters.

        In 1930 the Government of Norway expressly dis–

approved the sector theory. In recognizing the sovereignty

of Canada over the Sverdrup Islands, a Norwegian note

stated that the recognition of such sovereignty" over these

islands is in no way based on any sanction whatever of

what is named the 'sector principle.'" 50

        The Permanent Court of International Justice

in stating that international law "governs relations between

independent States" held: "The rules of law binding upon

States therefore emanate from their own free will as

expressed in conventions or by usages generally accepted

as expressing principles of law and established in order

to regulate the relations between these co-existing

independent communities or with a view to the achievement

of common aims." 51

028      |      Vol_XI-0087                                                                                                                  

        The sector principle has obviously not been

accepted as part of international law as thus authori–

tatively stated. No general international convention has

affirmed the sector principle, nor has it been recognized

by international usage. Rather the normal rules of inter–

national law as to what may be considered as land and

territorial waters must be the source for fixing the

recognized extent of national airspace Arctic rights.

        The first question to be answered is whether

the rules of international law have been so modified as

to permit the existence in the Arctic of sovereignty in

land territories which have never been "effectively oc–

cupied." The answer to this question would seem to depend

on a statement of what is meant by effective occupation.

The denial of the sector theory carries with it the denial

of sovereignty to undiscovered lands and the superjacent

airspace. As to lands already discovered, von de Heydte

has thus stated the rule:

        "Effectiveness means actual displaying

of sovereign rights; it means maintenance

of a certain order corresponding to the

international standard, which, of course, is

different in territories sparsely inhabited

and scarcely frequented by foreigners from

what it is in densely peopled trading

places." 52

        Lindley, speaking of the north polar regions, states the

applicable international law rule to be:

029      |      Vol_XI-0088                                                                                                                  
"In such cases, it would seem that an

occupation would be rendered effective by the

establishment of any organization (however

rudimentary) or of any system of control,

which, having regard to the conditions under

which the area appropriated was being used

or was likely to be used, was reasonably

sufficient to maintain order among such

persons as might resort there." 53

        The rules of effective occupation, as thus

stated, may be applied in the Arctic without any

departure from the accepted principles of international

law in view of the character of the terrain. A State

which there claims territorial rights and reasonably

exercises jurisdiction and control over the land areas

concerned may be admitted to have sovereignty. This

sovereignty extends to the airspace over the lands in

question and to normal adjacent territorial waters.

It does not extend further.

        The remaining question - as to whether any

part of the vast ice-covered water areas of the Arctic

Ocean beyond the limit of normal territorial waters may

be treated as possibly coming under the sovereignty of a

single State - presents much greater difficulty. It has

been suggested that claims of sovereignty might be con–

sidered if a particular area "is possessed of a surface

sufficiently solid to enable a man to pursue his occu–

pations thereon and which also in consequence of its

solidity and permanence constitutes in itself a barrier

030      |      Vol_XI-0089                                                                                                                  
to navigation as it is normally enjoyed in the open seas." 54

        As to most of the Arctic Ocean area the answer to

the problem seems fairly clear. From Alaska across the North

Pole to Spitzbergen is about 1900 statute miles. From the

north coast of Ellesmere Island (in Canada) also across the

Pole to the nearest known Soviet island is about 1100 miles.

This great ocean area contains no known land. It is ad–

mittedly almost continuously ice-covered. Only near the coasts

is it ever navigable, and that for only a limited period each

year. But the ice which covers by far the greatest part of

the Arctic Ocean is constantly, though slowly, in motion.

Established habitation and occupation is clearly impracticable.

This was demonstrated by the fruitless effort of the 1937–38

Soviet expedition to place a "permanent" settlement near the

North Pole (as described earlier in this articles). As Balch

said in 1910:

        "But the ice at the North Pole is

never at rest. It is in continual motion.

It moves slowly in a direction from Bering's

Strait towards the Atlantic Ocean. Con–

sequently any habitation fixed upon it would

be continually moving. And such possible

occupation would be too precarious and shifting

to and fro to give any one a good title. And

so the rules of the Law of Nations that

recognize the freedom of the high seas would

seem to apply naturally to a moving and

shifting substance like the North Polar Sea

ice at all points beyond the customary

three-mile limit from the shore." 55

031      |      Vol_XI-0090                                                                                                                  

        While it may be contended that under modern aviation

conditions such ice-covered seas can be controlled from the

air and thus occupied, the same thing can be said of the open

seas. But without question an attempt by a single State in

time of peace to seize any part of the high seas or the air–

space above and to maintain exclusive control in such areas

would be an act of aggression against all other States. No

more reason or excuse exists to admit that ice-covered seas

and the airspace above them may be seized by a single State

and all other States thereby excluded, than to admit that

the open seas and the airspace above them may legally be

similarly seized and held.

        A century and a quarter ago a great and wise

jurist, Justice Story, stated the basic rule of the freedom

of the seas:

        "Upon the ocean, then in time of peace,

all possess an entire equality. It is the

common highway of all, appropriated to the

use of all; and no one can vindicate to him–

self a superior or exclusive prerogative there.

Every ship sails there with the unquestionable

right of pursuing her own lawful business

without interruption; but, whatever may be

that business, she is bound to pursue it in

such a manner as not to violate the rights

of others." 56

        Justice Story's statement is as true today of the

airspace over the open sea and the sea itself as it was in

his time as to the sea alone. The airspace over the sea is

today a "highway common to all, appropriated to the use of

all." No adequate reason could be stated why this highway

032      |      Vol_XI-0091                                                                                                                  
should be blocked by the act of any single State because ice

and not open water lies below. The airspace over the Arctic

Ocean is and should be as free for the aircraft of all States,

whether having land territories in the Arctic or not, as is

the airspace over the other great water areas of the world.

• Two corollary problems must be considered:
  
  1) What is the status of the airspace over fixed ice along
  
  occupied coasts in the Arctic? and 2) What is the status of
  
  the airspace over straits bounded on each side by the land
  
  territory of the same State and connecting sea areas which
  
  are wholly or at times navigable?
  

        As stated earlier, the subjacent State has ex–

clusive sovereignty in the airspace over such territorial

waters adjacent to its coasts as are recognized by inter–

national law as properly coming within its jurisdiction.

This rule should be normally applied in the Arctic. Ter–

ritorial waters, except in extraordinary cases, should be

considered as beginning at the shore of the land and ex–

tending outward over the water to the width recognized for

territorial waters by international law, even though the

water is permanently ice-covered to that distance and

beyond. The only exception to this rule which, in the

judgment of the present author, can be considered as valid

would be a case where the permanent ice adjacent to the

shore is actually occupied and permanently used throughout

033      |      Vol_XI-0092                                                                                                                  
the entire year as fully as the adjoining land and as a

definite part of the State's occupied territory. If any

State can demonstrate the existence of such permanently used

and occupied fixed ice as part of its land territory, then

the true coastline might be considered as being on the fixed

ice at the edge of the occupied area. From such a line ter–

ritorial waters would then be considered as extending out to

the normal width, and the subjacent State might reasonably

claim airspace sovereignty over such permanently occupied

and used areas and a normal width of territorial waters ad–

jacent therto. But this case should not be considered as a

normal rule, but only as an exception to be claimed and

validly demonstrated by the State seeking surface and air–

space sovereignty by actual occupation of the fixed ice beyond

the real coastline. This suggested exception is analagous to

the right of a State bordering on the sea to extend its land

territories by filling in and physically occupying areas which

had formerly been part of its navigable territorial waters.

        As to the straits, the normal rule of international

law is that straits dividing the land of one and the same

State are part of the territory of that State when not more

than six miles wide. 57 As to straits more than six miles wide,

but sufficiently narrow to be controlled by coastal batteries

placed on each side, the rule is not so clear. It is believed

that the rule suggested at The Hague Conference on the Codi–

fication of International Law in 1930 is reasonably sound.

034      |      Vol_XI-0093                                                                                                                  
According to this rule, "when the width of the straits exceeds

the breadth of the two belts of territorial sea, the waters

between those two belts form part of the high sea. If the

result of the delimitation is to leave an area of high sea

not exceeding two miles in breadth surrounded by territorial

sea, this area may be assimilated to territorial sea." 58 If

such straits are thereby territorial waters, the airspace

above is under the sovereignty of the adjacent State. If,

on the other hand, an area through the center of the strait

should be considered under the rule as part of the high seas,

such airspace is usable for international flight even though

the area below be frozen.

035      |      Vol_XI-0094                                                                                                                  

       

SUMMARY

        The following rules of international air law

applicable to airspace sovereignty in the Arctic may there–

fore be stated:

• 1) The "sector" theory is not part of inter–
  
  national law and cannot be accepted or used
  
  as the basis for determining Arctic airspace
  
  rights.
  
• 2) In the Arctic as elsewhere each State has
  
  complete and exclusive sovereignty in the air–
  
  space over its territory and such space is in
  
  fact an integral part of national territory.
  
• 3) Surface territory in the Arctic, as else–
  
  where for the purpose of airspace sovereignty,
  
  includes lands and adjacent territorial waters.
  
  Airspace over recognized and admitted terri–
  
  torial waters is in the same legal status as
  
  airspace over land territory.
  
• 4) Every State has complete control of the
  
  airspace included within its territory, has
  
  the exclusive right to fly in that airspace,
  
  and may exclude all foreign aircraft or admit
  
  them on such terms as it seems fit.
  


036      |      Vol_XI-0095                                                                                                                  

• 5) In the determination of what areas in the
  
  Arctic constitute the lands and territorial
  
  waters of any State the normal rules of inter–
  
  national law will apply subject to the following
  
  observations:
  
• (a) In determining whether or not a State
  
  has "effectively occupied" lands in the
  
  Arctic the nature of the terrain must
  
  be considered and such occupation will
  
  be deemed effective if the State main–
  
  tains adequate jurisdiction and control
  
  in the area so as to protect such in–
  
  habitants as may be there and to main–
  
  tain order.
  
• (b) In determining the extent of terri–
  
  torial waters, the normal rules will
  
  apply unless water areas adjoining
  
  occupied lands are permanently covered
  
  with ice and continuously used and oc–
  
  cupied by the adjacent State as if they
  
  were land, in which case and on proof
  
  of such occupation, the coast line may
  
  be considered as beginning at the edge
  
  of the permanently occupied ice.
  
• 6) Airspace over the high seas is free to the use
  
  of all States and cannot be subject to the sove-
  
  037      |      Vol_XI-0096                                                                                                                  
  reignty of any single State. The ice-covered
  
  areas of the Arctic Ocean must be treated as
  
  high seas, and the airspace over such areas
  
  as free to the use of all.
  


001      |      Vol_XI-0097                                                                                                                  

       

FOOTNOTES

       

to

       

AIRSPACE RIGHTS OVER THE ARCTIC

        1. Translated from the official French text

in Conférence de la paix, 1919–1920. Recueil des actes

de la conférence . Partie VII, Préparation et signature

des traités et conventions divers, A - Conventions

générales entre alliés, (1) Commission de l'aéronautique,

Paris, Imprimerie nationale, 1933. pp. 428–429.

        2. Full text in: International Convention

Relating to the Regulation of Aerial Navigation , dated

October 13, 1919, ...Department of State Publication

2143, Washington, U.S. Government Printing Office, 1944;

Manley O. Hudson, ed., International Legislation ,

Washington, Carnegie Endowment for International Peace,

1931, Vol. 1, pp. 359–376.

        3. U.S. Naval War College, International Law

Situations 1912 , Washington, U.S. Government Printing Office,

1912, p. 71.

        4. U.S. Statutes at Large . Vol. 38, p. 2039. Also

in: Francis Deák and Philip C. Jessup, eds. A Collection of

Neutrality Laws , Regulations and Treaties of Various Countries .

Washington, Carnegie Endowment for International Peace, 1939,

Vol. 2. p. 807.

002      |      Vol_XI-0098                                                                                                                  
Footnotes

        5. Henry Woodhouse, Textbook of Aerial Laws

and Regulations for Aerial Navigation ..., New York,

F. A. Stokes, 1920, p. 141.

        6. U.S. Statutes at Large , Vol. 44, 1926,

p. 568. 49 U.S.C. 176.

        7. Commercial Aviation. Convention between

the United States of America and other American Republics ,

signed at Habana, February 20, 1928. Treaty Series No. 840,

Washington, U.S. Government Printing Office, 1931;

Hudson, International Legislation , cp. cit., Vol. 4,

pp. 2356–2369.

        8. U.S. Statutes at Large , Vol. 52, 1938, p. 1028.

        9. International Civil Aviation Conference,

Chicago, Illinois, November 1, to December 7, 1944, Final

Act and Related Documents , Washington, U.S. Government

Printing Office, 1945, p. 59; John C. Cooper, The Right

to Fly . New York, Henry Holt, 1947, pp. 331–359.

        10. Timothy Andrew Taracouzio. The Soviet Union

and International Law . New York, Macmillan, 1935, p. 73.

        11. As reprinted and translated in Taracouzio,

ibid ., p. 401.

003      |      Vol_XI-0099                                                                                                                  
Footnotes

        12. For a general discussion of some of the

principal questions, see: Thomas Willing Balch, "Les

Regions arctiques et antarctiques et le droit inter–

national," Revue de droit international et de législation

comparée , Vol. 42, 1910, (2d series - Vol. 12), pp.434–442;

"The Arctic and Antarctic Regions and the Law of Nations,"

American Journal of International Law , Vol. 4, 1910,

pp. 265–275; Paul Fauchille, Traité de droit international

public , 8th ed., Paris, A. Rousseau, 1921–26, Vol. 1,

Part 2, (1925), Sec..531 (36–40), pp. 651–663; Green

Haywood Hackworth, Digest of International Law , Washington,

U.S. Government Printing Office, 1940, Vol. 1, Secs. 67–71,

pp. 449–476; W.L.G. Joerg, Brief History of Polar

Exploration since the Introduction of Flying , 2d rev. ed.,

New York, American Geographical Society (Special Publi–

cation No. 11), 1930; V. Kenneth Johnston, "Canada's

Title to the Arctic Islands," Canadian Historical Review ,

Vol. 14, 1933, pp. 24–21; David Hunter Miller, "Political

Rights in the Arctic," Foreign Affairs , Vol. 4, 1925,

pp. 47–60; Lassa F. L. Oppenheim, International Law: A

Treatise , 7th ed., London/New York/Toronto, Longmans

Green, 1948, Vol. 1, Sec. 221, note 6, p. 508; Elmer

Plischke, "Trans-Polar Aviation and Jurisdiction over

Arctic Airspace," American Political Science Review ,

Vol. 37, 1943, pp. 999–1013; Walther Schoenborn, "La

Nature juridique du territorie," Hague, Académie de droit

international, Recueil des cours , Vol. 30, 1929–V, pp. 87,

162–166; James Brown Scott, "Arctic Exploration and

International Law," American Journal of International Law ,

003a      |      Vol_XI-0100                                                                                                                  
Footnotes

Vol. 3, 1909, pp. 928–941; Gustav Smedal, Acquisition

of Sovereignty over Polar Areas , Oslo, Dybwad, 1931;

U.S. Naval War College, International Law Situations

1937 , Washington, D. C., U.S. Government Printing

Office, 1939, pp. 69–131; René Waultrin, "Le Problème

de la souveraineté des pôles," Revue générale de droit

international public , Vol. 16, 1909, pp. 649–660;

"La Question de la souveraineté des terres arctiques,"

Revue générale de droit international public , Vol. 15,

1908, pp. 78–125, 185–209, 401–423.

004      |      Vol_XI-0101                                                                                                                  
Footnotes

        13. Debates of the Senate of the Dominion

of Canada . 1906–07. 10th Parliament, 3d Session, (1907).

pp. 266–271. See also: Green Haywood Hackworth, Digest

of International Law , Washington, U. S. Government

Printing Office, 1940, Vol. 1, Sec. 67, p. 463; Timothy

Andrew Taracouzio, Soviets in the Arctic . New York,

Macmillan, 1938, p. 320; Leonid Breitfuss, "Territorial

Division of the Arctic," Dalhousie Review , Vol. 8, 1928.

p. 464.

        14. Hackworth, Digest of International Law ,

op. cit ., Vol. 1, Sec. 102, p. 700.

        15. V. Kenneth Johnston, "Canada's Title to

the Arctic Islands," Canadian Historical Review , Vol. 14,

1933, p. 33.

        16. Taracouzio, Soviets in the Arctic , op. cit .,

pp. 327–328; David Hunter Miller, "Political Rights in

the Arctic," Foreign Affairs , Vol. 4, 1925, p. 50.

        17. U.S. Congress, House of Representatives,

Committee on Naval Affairs, Hearing on House Resolution

149 , concerning Contemplated Flight of the Shenandeah to

the North Polar Regions. 1924, pp. 452–453. See also:

005      |      Vol_XI-0102                                                                                                                  
Footnotes

Charles Cheney Hyde, International Law ..., 2d rev. ed.,

Boston, Little Brown, 1945, Vol. 1, Sec. 104D, p. 353;

Taracouzio, Soviets in the Arctic , op. cit ., p. 326.

        18. Hackworth, Digest of International Law ,

op. cit ., Vol. 1, Sec. 67, p. 461; W. Lakhtine, "Rights

over the Arctic," American Journal of International Law ,

Vol. 24, 1930, p. 708.

        19. Ibid . See also: Miller, "Political

Rights in the Arctic," op. cit ., p. 53.

        20. Debates of the House of Commons of the

Dominion of Canada, 14th Parliament, 4th Session (1925),

p. 4238; Hackworth, Digest of International Law , o [ ?] .

cit ., Vol. 1, Sec. 67, p. 463; Miller, "Political Rights

in the Arctic," op. cit ., p. 50; Taracouzio, Soviets in

the Arctic , op. cit ., p. 328; Breitfuss, "Territorial

Division of the Arctic," op cit ., p. 464; U.S. Naval

War College, International Law Situations 1937 , Washington,

U.S. Government Printing Office, 1939, p. 110.

        21. Hackworth, Digest of International Law ,

op. cit ., Vol. 1, Sec. 67, p. 463.

006      |      Vol_XI-0103                                                                                                                  
Footnotes

        22. British & Foreign State Papers , Vol. 124,

p. 1064. See also: U.S. Naval War College, International

Law Situations 19 37 , op. cit ., p. 103; Taracouzio, Soviets

in the Arctic , op. cit ., p. 381; Lakhtine, "Rights over

the Arctic," op. cit ., p. 709.

        23. E. A. Korovin, "Problem [ ?] Vozduchnoi

Okkupatsii," Vepresy Vozd. Prava , Vol. 1, pp. 109–110,

as cited in Taracouzio, Soviets in the Arctic , op. cit .,

p. 348.

        24. S. V. Sigrist, "Sovetskee Pravo v Poliarnykh

Prostranstvakh," Rabochii Sud , 1928, p. 984, as cited in

Taracouzio, Soviets in the Arctic , op. cit ., p. 349.

        25. U. S. Naval War College, International Law

Situations 19 37 , op cit ., p. 101.

        26. V. L. Lakhtine, Prava na Severnye Poliarnye

Prostranstva , Moscow, 1928. See also: W. L. G. Joerg,

Brief History of Polar Exploration since the Introduction

of Flying , 2d rev. ed., New York, American Geographical

Society (Special Publication No. 11), 1930, p. 61, note 1.

        27. "La Voie aérienne arctique et 1' [ ?] tat

juridique des territoires polaires septentrionaux," Droit

a [ ?] rien , Vol. 13, 1929, pp. 632–556.

007      |      Vol_XI-0104                                                                                                                  
Footnotes

        28. "Rights over the Arctic," American Journal

of International Law , Vol. 24, 1930, pp. 703–717. For

extended discussions of Lakhtine's position, see: U.S.

Naval War College, International Law Situations 1937 ,

op. cit ., pp. 101–106; Taracouzio, Soviets in the Arctic ,

op. cit ., pp. 321–366.

        29. "Rights over the Arctic," op. cit ., p. 710.

        30. Ibid ., p. 711.

        31. Ibid ., p. 712.

        32. Ibid ., p. 713.

        33. Ibid ., pp. 714–715.

        34. Ibid .

        35. Ibid ., p. 715. For another translation of

this statement of Breitfuss, see: Breitfuss, "Territorial

Division of the Arctic," op. cit ., p. 467.

        36. At least one careful student of the situation

feels that the Soviet Government "has elected to forego the

application of sectorism to airspace in the Arctic,

008      |      Vol_XI-0105                                                                                                                  
Footnotes

adhering rather to the older, established principles of

aerial jurisdiction." [Elmer Plischke, "Trans-Polar

Aviation and Jurisdiction over Arctic Airspace," American

Political Science Review , Vol. 37, 1943, p. 1010]

        37. Taracouzio, The Soviet Union and Inter–

national Law , op. cit ., p. 63.

        38. Ibid .

        39. Lakhtine, "Rights over the Arctic," op. cit .,

p. 717.

        40. New York Times , May 23, 1927, p. 1, col. 8.

        41. Taracouzio, Soviets in the Arctic , op. cit .,

p. 359.

        42. New York Times , August 8, 1937, p. 27, col. 2.

        43. Ibid ., August 29, 1937.

        44. Ibid ., February 6, 1938, p. 32, col. 2.

        45. Ibid ., February 20, 1938, p. 1, col. 6.

009      |      Vol_XI-0106                                                                                                                  
Footnotes

        46. Hackworth, Digest of International Law ,

op. cit ., Vol. 1, Sec.67, p. 464.

        47. See Note 17 supra .

        48. Hackworth, Digest of International Law ,

op. cit ., Vol. 1, Sec. 67, p. 457; Hyde, International

Law , op. cit ., Vol. 1, Sec. 104D, pp. 343–354.

        49. U.S. Naval War College, International Law

Situations 1937 , op. cit ., p. 127.

        50. Hackworth, Digest of International Law ,

op. cit ., Vol. 1, Sec. 67, p. 463; U.S. Naval War

College, International Law Situations 1937 , op. cit .,

p. 111.

        51. The S. S. Lotus (France v. Turkey),

Permanent Court of International Justice, Judgment 9,

Sept. 7, 1927, Ser. A, No. 10, p. 18; Manley O. Hudson,

ed., World Court Reports , Washington, Carnegie Endowment

for International Peace, 1934–43, Vol. 2 (1935), p. 35.

        52. Friedrich August Freiherr ven de Heydte,

"Discovery, Symbolic Annexation and Virtual Effectiveness

in International Law," American Journal of International

Law , Vol. 29, 1935, p. 463.

010      |      Vol_XI-0107                                                                                                                  
Footnotes

        53. M. F. Lindley, The Accuisition and Govern–

ment of Backward Territory in International Law, New York

etal., Longmans Green, 1926, p. 158.

        54. Hyde, International Law , op. cit ., Vol. 1,

Sec. 104A, p. 348.

        55. Thomas Willing Balch, "The Arctic and

Antarctic Regions and the Law of Nations," American

Journal of International Law , Vol. 4, 1910, p. 266.

        56. The Marianna Flora , (1826), 11 Wheaton

(24 U.S.) 1, p. 42.

        57. Lassa F. L. Oppenheim, International Law :

A Treatise , 7th ed., London/New York/Toronto, Longmans

Green, 1948, Vol. 1, Sec. 194, p. 463.

        58. Hackworth, Digest of International Law ,

op. cit ., Vol. 1, Sec. 90, p. 611.