Airspace Rights Over the Arctic: Encyclopedia Arctica 11: Territorial Sovereignty and History
Airspace Rights Over the Arctic
[Figure]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 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:
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 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.
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 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.
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, 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.
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, 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.
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 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.
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 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.
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.
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.
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 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 .
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.
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.
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
eignty, the subjacent State, within its borders, can
forbid flight and, with greater reason, landing."
1
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:
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.
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
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."
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 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
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 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, thus assuming complete national control in the airspace over
all the lands and waters of the United States.
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, 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
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 of the airspace are the following:
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 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.
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 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.
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 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:
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 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 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.
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 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:
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
-
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.
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.
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 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:
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 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.
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:
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."
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
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 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
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 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
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- cussing possible lands north of Alaska, said:
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- 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
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.
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.
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:
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 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
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 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
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:
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: -
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:
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 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.
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 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.
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 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, ice and waters" and hence "each Polar State exercises
sovereignty over the aerial space above the whole region
of attraction of its sector." 33
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 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, 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:
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.
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
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:
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 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
adjacent State exercises its sovereignty
over discovered as well as over undiscovered 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 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.
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 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:
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 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"
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.
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 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"
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 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.
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 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.
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:
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;
-
(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
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 beyond the normal three mile limit from the coast line of
the State facing the Arctic and the airspace over such
areas, saying:
cations which might be drawn from the 1924 testimony of
Secretary of the Navy Denby, 47
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 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
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.
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
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
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
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.
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:
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
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: "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
applicable international law rule to be: "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.
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 to navigation as it is normally enjoyed in the open seas." 54
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 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:
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
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
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.
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:
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
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 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.
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 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 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.
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 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. 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.
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. 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.
SUMMARY
The following rules of international air law
applicable to airspace sovereignty in the Arctic may there–
fore be stated:
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.
-
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-
-
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.
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.
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.
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.
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.
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.
Footnotes
5. Henry Woodhouse,
Textbook of Aerial Laws
and Regulations for Aerial Navigation ..., New York,
F. A. Stokes, 1920, p. 141.
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.
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.
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.
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.
and International Law . New York, Macmillan, 1935, p. 73.
11. As reprinted and translated in Taracouzio,
ibid ., p. 401.
ibid ., p. 401.
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 ,
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.
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 ,
Footnotes
Vol. 3, 1909, pp. 928–941; Gustav Smedal, Acquisitionof 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.
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.
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.
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.
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.
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:
Boston, Little Brown, 1945, Vol. 1, Sec. 104D, p. 353;
Taracouzio, Soviets in the Arctic , op. cit ., p. 326.
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:
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.
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.
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.
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.
op. cit ., Vol. 1, Sec. 67, p. 463.
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.
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.
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.
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.
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.
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.
juridique des territoires polaires septentrionaux," Droit
a [ ] rien , Vol. 13, 1929, pp. 632–556.
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.
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.
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,
aerial jurisdiction." [Elmer Plischke, "Trans-Polar
Aviation and Jurisdiction over Arctic Airspace," American
Political Science Review , Vol. 37, 1943, p. 1010]
feels that the Soviet Government "has elected to forego the
application of sectorism to airspace in the Arctic,
Footnotes
adhering rather to the older, established principles ofaerial 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.
national Law , op. cit ., p. 63.
38.
Ibid
.
39. Lakhtine, "Rights over the Arctic,"
op. cit
.,
p. 717.
p. 717.
40.
New York Times
, May 23, 1927, p. 1, col. 8.
41. Taracouzio,
Soviets in the Arctic
,
op. cit
.,
p. 359.
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.
Footnotes
46. Hackworth,
Digest of International Law
,
op. cit ., Vol. 1, Sec.67, p. 464.
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.
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.
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.
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.
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.
"Discovery, Symbolic Annexation and Virtual Effectiveness
in International Law," American Journal of International
Law , Vol. 29, 1935, p. 463.
Footnotes
53. M. F. Lindley,
The Accuisition and Govern–
ment of Backward Territory in International Law, New York
etal., Longmans Green, 1926, p. 158.
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.
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.
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.
(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.
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.
op. cit ., Vol. 1, Sec. 90, p. 611.
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