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    Airspace Rights Over the Arctic

    Encyclopedia Arctica 11: Territorial Sovereignty and History

    Unpaginated      |      Vol_XI-0059                                                                                                                  


    001      |      Vol_XI-0060                                                                                                                  





    John C. Cooper

            The determination of national airspace rights over

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

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

    matic, commercial, and military relations of those States

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

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

    States (through its ownership of Alaska). Indirectly it

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

    Potential air routes across the Arctic are the shortest

    distance between important parts of the Northern hemisphere.

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

    certainty as to the rights of nations to fly.

            The basic rule of international air law, fixing

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

    be stated as follows:

            If any area on the surface of the earth,

    whether land or water, is recognized as part of

    the territory of a State, then the airspace over

    such surface area is also part of the territory

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

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

    of any State, such as the water areas included

    in the high seas, then the airspace over such

    surface areas are not subject to the sovereign

    control of any State and are free for the use

    of all States.

            This is another way of saying that the old concept of

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

    surface can no longer be accepted. National territory is

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

    above cannot be separately treated. Together they must be

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

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

    over such surface areas constitute equally entry into the

    territory of the State. The background of this presently

    accepted rule must be stated in order to understand the

    problem of airspace rights over the Arctic.

            In the latter part of the nineteenth century and the

    first decade of the twentieth century, doctrinal discussions

    developed in western Europe as to the legal status of the

    airspace. These were centered around the question as to whether

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

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

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

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

    immediately over the earth's surface was subject to the

    sovereignty of the State below, but that the upper airspace

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

    purely doctrinal. There is no evidence that any important

    sovereign State ever disclaimed control of any part of the

    airspace over its surface territories. In fact there is

    ample legal evidence that State sovereignty in the airspace

    has existed since Roman times.

            The first international attempt to settle diplo–

    matically the extent of national airspace rights ended with

    failure at the Paris Conference of 1910. Differences de–

    veloped as to the extent to which foreign aircraft might

    have privileges of flight in the airspace over national

    territory. But not one of the European governments there

    represented was ready to accept the theory that the airspace

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

    subject to its control.

            Concrete acts of the great powers soon thereafter

    affirmed the existence of airspace sovereignty. Great Britain,

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

    to set up prohibited areas in its territory over which no

    foreign aircraft might fly and to control the terms under which

    such foreign aircraft might enter the airspace over its lands

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

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

    aircraft of one nation could enter the airspace over the other

    except on invitation , and the civil aircraft of one nation

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

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

    These British Air Navigation Acts and the French-German air

    traffic agreement demonstrate that each of these powers

    claimed full right to control the airspace over its land

    and water territories as against all other nations. This is

    the exercise of external or national sovereignty in inter–

    national law.

            The outbreak of World War I in Europe further affirmed

    the existence of airspace sovereignty over national surface

    territories. In a letter handed by the German Ambassador to

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

    that the German Empire considered itself at war with France.

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

    war was the allegation that French military aviators had been

    guilty of hostile acts on German territory and that they had

    "openly violated the neutrality of Belgium by flying over the

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

    that the airspace over Germany was part of German territory

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

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

    space constituted an invasion of Belgian territory and its

    internationally guaranteed neutrality.

    005      |      Vol_XI-0064                                                                                                                  

            Immediately after the outbreak of the war, various

    European nations closed their air boundaries. During the

    course of the war neutral states required belligerent aircraft

    flying into the airspace over their surface territories to

    land and be interned just as they required foot soldiers to

    be interned when crossing land boundaries into neutral terri–


            During the meeting of the Peace Conference following

    the war, an aeronautical commission was organized and charged

    with preparing a convention for the regulation of air navi–

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

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

    vention, said:

            "The first question placed before the Sub–

    commission was that of the principle of freedom

    or of sovereignty of the air .

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

    commission is favorable to the full and exclusive

    submission of the airspace to the sovereignty of

    the subjacent territory. It is only when the

    column of air hangs over a res nullius or communis ,

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

            "Therefore, the airspace is part of the legal

    regime of the subjacent territory. Is this terri–

    tory that of a particular State? Then the airspace

    is subject to the sovereignty of that State. Does

    it escape all sovereignty as the free sea? Then

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


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

    eignty, the subjacent State, within its borders, can

    forbid flight and, with greater reason, landing."


    006      |      Vol_XI-0065                                                                                                                  

            The convention came into effect as the Paris Con–

    vention of 1919 "relating to the Regulation of Aerial

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

    airspace sovereignty:

            "The High Contracting Parties recognise that

    every Power has complete and exclusive sovereignty

    over the air space above its territory.

            "For the purpose of the present Convention

    the territory of a State shall be understood as

    including the national territory, both that of

    the mother country and of the colonies, and the

    territorial waters adjacent thereto." 2

            This Convention was later either ratified or adhered

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

    and also by the British Dominions, including Canada. Its

    statement of airspace sovereignty became an accepted part

    of international law. The Convention does not purport to

    grant rights of sovereignty reciprocally between the States

    which are parties to the Convention. Instead it states the

    existence of an admitted rule that every State, whether a

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

    sovereignty over the airspace above its territory."

            The United States signed, but did not ratify, the

    Paris Convention of 1919. This refusal to ratify had nothing

    to do with the fact that the convention acknowledged the existence

    of airspace sovereignty as the fundamental principle of inter–

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

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

    As early as 1912 in the unofficial but authoritative Inter–

    national Law Situations
    prepared by The United States Naval

    War College and published by the Government Printing Office,

    it was stated "that physical safety, military necessity,

    the enforcement of police, revenue, and sanitary regulations

    justify the claim that a State has jurisdiction in aerial

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

    therefore, to start from the premise that air over the

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

    other air is within the jurisdiction of the subjacent

    state..." 3

            This position was affirmed by the conduct of the

    United States during World War I. By proclamation of November

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

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

    forbidden to pass through the airspace above the lands and

    waters within the jurisdiction of the United States at the

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

    flying was prohibited unless specially licensed if the flight

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

    or occupation of the United States which may be designated by

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

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

    torial waters and possessions were designated as such a zone,

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

    all the lands and waters of the United States.

            The rule of airspace sovereignty became part of the

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

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

    the United States has to the exclusion of all foreign nations

    complete sovereignty of the airspace over the lands and waters

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

    United States assisted in drafting and later signed and ratified

    the Havana Convention which in Article 1 recognizes "that every

    State has complete and exclusive sovereignty ever the airspace

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

    the United States affirmed the same principle in the present

    Civil Aeronautics Act. 8

            As parties to the Paris Convention of 1919 all of the

    States then directly interested in the Arctic (except the United

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

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

    party to the Havana Convention. The Chicago Convention of 1944

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

    Havana Convention. It states the basic existing principles of

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

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

    the United States — directly interested in the Artctic. The

    provisions of this convention directly applicable to the status

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

            " Article 1 : The contracting States recognize

    that every State has complete and exclusive sovereignty

    over the airspace above its territory.

            " Article 2 : For the purposes of this Convention

    the territory of a State shall be deemed to be the

    land areas and territorial waters adjacent thereto

    under the sovereignty, suzerainty, protection or

    mandate of such State." 9

            The convention also recognizes that airspace over the

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

    Article 12 it provides that each contracting State undertakes

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

    tory and that every aircraft carrying its nationality mark

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

    regulations relating to the flight and maneuver of aircraft

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

    force shall be those established under this Convention." In

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

    power to make rules applicable to the flight of aircraft of

    other States. Such flight can be regulated only by agreement

    between several States and the rules thus agreed will apply

    only to the States which have adopted such rules.

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

    Paris Convention nor the Chicago Convention must not be taken

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

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

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

    January 17, 1921 10 this principle was tacitly recognized.

    Foreign aircraft were permitted to cross Soviet boundaries

    only by special permit and subject to special regulations.

    Other later decrees clarified the reservation by the Soviet

    Government or the right to regulate air navigation over

    Soviet surface territories. With the promulgation on

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

    was made very clear. The directly applicable provisions

    are as follows:

    • "1. The air code is in force throughout the

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

      and the territorial waters established by the laws

      of the Union of S.S.R., and within the air space

      of the Union of S.S.R.
    • "By the air space of the Union of S.S.R. is

      understood the air space above the land and fluvial

      territory of the Union of S.S.R., and above the

      territorial waters established by the laws of the

      Union of S.S.R.
    • "2. To the Union of S.S.R. belongs the

      complete and exclusive sovereignty over the air

      space of the Union of S.S.R." 11

            It is apparent from the provisions of this Air Code

    that no difference exists between the USSR and the other States

    facing the Arctic as to airspace sovereignty, except in a

    possibly important difference in the definition of what consti–

    tutes surface territory. It will be noted from the citations

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

    are defined to include "the land areas and territorial waters

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

    the USSR includes the airspace "above the territorial waters

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

    constitute a reservation by the USSR of the unilateral right

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

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

    Chicago Convention territorial waters are only these "adjacent"

    to land territories.

            In summary, it may be said that international air

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

    space sovereignty now includes the following rules:

    • a. Each State has complete and exclusive

      sovereignty over the airspace above its surface

      territory and such airspace is in fact an integral

      part of national territory.
    • b. Surface territory for the purpose of

      airspace sovereignty includes territorial waters.

      Airspace over such territorial waters is in ex–

      actly the same legal status as airspace over land

    • c. Every sovereign State has complete control

      of the airspace included in its territory, has the

      exclusive right to fly in that airspace, and may

      exclude all foreign aircraft or admit them on such

      terms as it sees fit. The aircraft of one state

      do not have in the airspace of another S tate any

      right of entry or innocent passage and will only

      be admitted to such airspace with the consent of

      the State having sovereign control. No right of

      innocent passage in the airspace over territorial

      waters exists in favor of foreign aircraft although

      012      |      Vol_XI-0071                                                                                                                  
      such rights of innocent passage does exist in

      the territorial waters themselves for foreign

      sea-going vessels in time of peace. To this

      extent the law of the air and the law of the

      sea are not in accord.
    • d. Airspace over the high seas and over

      surface territory which is not part of the

      territory of any States is free for the use of

      the aircraft of all States.

            From the foregoing rules the extent and char–

    acter of national airspace rights over the Arctic can be

    determined. But such determination requires a decision

    as to what constitutes the Arctic surface territory, both

    land and territorial waters, of the interested States. On

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

    trol the flight of other States and the future of Arctic

    international flight.

            The scope of this article will not permit an ex–

    tended discussion of all of the questions entering into any

    definitive statement of national surface sovereignty rights

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

    for a statement of at least presumptive airspace rights.

            The normal rules of international law require

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

    viously part of the territory of any other State, must

    show discovery and later effective possession with notice

    to other States. Also no State may claim sovereignty in

    those water areas known as the high seas where every State

    has equal rights. The primary difficulty in stating the

    extent of national sovereignty in the Arctic rests on the

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

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

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

    It is necessary to decide:

    • 1) whether to accept the so-called "sector"

      theory under which a State facing toward

      the North Pole is supposed to have

      sovereign rights in the triangular area

      between its recognised territory and

      the North Pole itself irrespective of

      the normal rules of international law;

    • 2) if the "sector" theory is not accepted,

      whether (a) the rules of international

      law have been so modified as to permit

      the existence in the Arctic of sovereignty

      in land territories which have never been

      "effectively occupied" by the State

      claiming such sovereignty, and (b) whether

      any part of the vast ice-covered water

      areas in the Arctic beyond the limit of

      normal territorial waters may be treated

      as subject to the sovereignty of a par–

      ticular State, or whether such areas

      should be considered as part of the high

      seas and not, therefore, subject to the

      sovereignty of any State.

    • 014      |      Vol_XI-0073                                                                                                                  

            The sector theory of Arctic sovereignty is a

    development of the twentieth century. It was first

    definitively stated in a debate in the Canadian Senate.

    On February 20, 1907, Senator Poirier proposed the

    following resolution:

            "That it be resolved that the Senate

    is of opinion that the time has come for

    Canada to make a formal declaration of

    possession of the lands and islands

    situated in the north of the Dominion,

    and extending to the north pole."

            He stated, in the debate, that:

            "... in future partition of northern

    lands, a country whose possession today

    goes up to the Arctic regions, will have a

    right, or should have a right, or has a

    right to all the lands that are to be found

    in the waters between a line extending from

    its eastern extremity north, and another

    line extending from the western extremity

    north. All the lands between the two lines

    up to the North Pole should belong and do

    belong to the country whose territory abuts

    up there." 13

            The resolution was not adopted. But it evidenced a

    growing feeling that Canada had special rights in areas

    north of its then occupied territories. During the

    previous year, 1906, the first edition of the Canadian

    Atlas had been officially published under the title

    "Department of the Interior, Canada, Honourable Frank

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

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

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

    dotted lines running towards the North Pole - one on the

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

    60°. In the same year the Canadian Parliament had

    amended the Fisheries Act of 1904 so as to require that

    a license fee be payable for hunting whales in Hudson

    Bay "inasmuch as Hudson Bay is wholly territorial water

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

    tablet on Melville Island "to commemorate the taking

    possession for the Dominion of Canada of the whole Arctic

    Archipelago lying to the north of America from longitude

    60 degrees west to 141 degrees west up to latitude 90

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

    ritorial rights within the sector described, certainly

    covering all islands and also perhaps the waters in the

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

    of Poirier in the Canadian Senate in 1907, the tablet

    erected on Melville Island in 1909, together evidence

    Canadian support of the sector theory. This was further

    emphasized in 1921 by a note addressed to the Government

    of Denmark holding that any discoveries which the Danish

    explorer, Rasmussen, might make north of Canada would be

    considered as not affecting the rights of Canada in such

    territories. 16

            In 1934 the United States semi-officially took

    cognizance of the sector theory. Denby, then Secretary

    of the Navy, testifying in January 1924 before the House

    Committee on Naval Affairs as to a proposed flight of the

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

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

            "And furthermore, in my opinion it

    is highly desirable that if there is in

    that region land, either habitable or not,

    it should be the property of the United

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

    view with equanimity any territory of that

    kind being in the hands of another Power." 17

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

    remarks may have had international repercussions for it

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

    its Arctic territorial claims.

            In a note of November 4, 1924 to all other

    States 18 the USSR affirmed a prior notification given

    in 1916 by the Russian Imperial Government announcing

    the incorporation into the Russian Empire of various

    Arctic islands north of the Russian and Siberian main–

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

    unoccupied islands in the Soviet sector, and perhaps

    to undiscovered lands.

            The Canadian position was restated more

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

    Stewart, said in the Canadian House of Commons:

            "Mr. Speaker, this Government has been

    very much alive to what we claim to be the

    possessions of Canada in the northern ter–

    ritory adjacent to the Dominion. Indeed, I

    made the statement in the House the other

    evening that we claimed all the territory

    lying between meridians 60 and 141. This

    afternoon, when dealing with the estimates

    of the Department of the Interior, I propose

    to bring down a map to make it clear what

    017      |      Vol_XI-0076                                                                                                                  
    precautions we are taking to establish

    ourselves in that territory, and to

    notify the nationals of foreign countries

    passing over it that we think Canada should

    be advised of their plans and that they

    should ask for permits from the Canadian

    Government." 20

            In the same debate he stated that Canada claimed juris–

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

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

    thereafter entering the territories of the Canadian Arctic

    should secure permits. 21

            Also in 1926, perhaps as a result of the

    definitive statement of the Canadian position, the

    USSR adopted a formal decree covering its territorial

    claims in the Arctic. This decree is more specific than

    the 1924 diplomatic note. The decree states:

            "The Presidium of the Central Executive

    Committee of the Union of Soviet Socialist

    Republics decrees: -

            "All discovered lands and islands, as

    well as all those that may in the future be

    discovered, which are not at the date of the

    publication of this decree recognised by the

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

    of a foreign Power, are declared to be ter–

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

    the following limits:

            "In the Northern Arctic Ocean, from the

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

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

    east longitude from Greenwich, passing along

    the eastern side of Vaida Bay through the

    triangulation mark on Kekursk Cape, and

    meridian 168° 49′ 30″ west longitude from

    Greenwich, passing through the middle of

    the strait which separates Patmanov and

    Kruzenstern Islands of the Diomede group of

    islands in the Behring Straits." 22

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

    affirming the sector principle. It is a distinct claim

    of sovereignty as against all the world over occupied,

    unoccupied, and even undiscovered land territories in

    the Soviet sector. The decree has never been repealed.

            Construed strictly, the decree of 1926 applies

    only to lands in the Soviet sector. But authoritative

    Soviet writers have given it a much wider application.

    Korovin, writing soon after the decree was issued, stated

    that "this Decree must be understood to include in the

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

    legislators, also ice formations and the seas surrounding

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

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

    consequences resulting from such an interpretation." 23

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

    we must maintain that the whole region from the Soviet

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

    included water areas.

            Without question the most authoritative

    statement was made by Lakhtine. He was Secretary–

    Member of the Committee of Direction of the Section of

    Aerial Law of the Union of Societies "Ossoaviachim" of

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

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

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

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

    was originally published in 1928 in Moscow in Russian by

    the Soviet Commissariat of Foreign Affairs. 26 His views

    were republished in French in 1929 27 and in English in

    1930. 28 His position may be summarized as follows:

    that in polar regions the sector principle must be ac–

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

    effective occupation, the discovered lands and islands

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

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

    and islands being still undiscovered are already presumed

    to belong to the national territory of the adjacent Polar

    State in the sector of the region of attraction in which

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

    assimilated legally to open polar seas, whilst ice

    formations that are more or less immovable should enjoy

    a legal status equivalent to polar territory;" 31 that

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

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

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

    ereignty over known and unknown territory lying in their

    sectorial regions of attraction, and over more or less

    immovable permanent ice formations covering the north

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

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

    ereignty also over the atmosphere above these territories,

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

    sovereignty over the aerial space above the whole region

    of attraction of its sector." 33

            In arguing that polar States should have

    sovereignty even in the airspace over water areas of the

    Arctic Ocean free from ice, Lakhtine said:

            "Inasmuch as the legal status of these

    water areas is closely assimilated to that

    of territorial waters over which a State

    does exercise a limited sovereignty; and

    since, according to the international law

    of today a litteral State exercises unlimited

    jurisdiction over the atmosphere above its

    territorial waters, there is no reason for

    treating the question of the legal status of

    these Arctic air regions in a different


            "This argument is strengthened when we

    realize the impossibility of using airships

    for economic purposes exclusively in this

    part of Arctic aerial space. If an airship

    should be used for operations connected with

    fishing and hunting in these open waters, it

    would be as necessary to obtain the per–

    mission of the litteral State as it would be

    to obtain permission for fishing and hunting

    from vessels. Moreover, it is impossible

    to use the air for aerial communication

    without crossing ice regions, territorial

    waters and territories belonging to a State

    which exercises sovereignty over the

    atmosphere above." 34

            Also in further support of his conclusion that polar States

    exercise sovereignty over the airspace above the whole

    region of the sector, Lakhtine quotes the 1928 statement

    of Breitfuss as follows:

            "Within each of these sectors, an

    adjacent State exercises its sovereignty

    over discovered as well as over undiscovered

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

    exercised not only over land, but also to

    a certain extent (yet to be precisely fixed

    internationally) over seas covered with ice,

    surrounding these lands and islands and as

    well over air regions above this sector." 35

            The Government of the USSR has not in terms

    repudiated the position taken by Korovin, Sigrist and ?

    Lakhtine in support of the theory that the USSR and other

    polar States are sovereign over the entire land and water

    areas and airspace over their respective sectors. But

    the actual course of subsequent events creates doubts as

    to whether the USSR supports the sector principle beyond

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

    place the international agreement which Breitfuss assumed

    necessary in order to fix the status of sovereignty over

    the polar seas has not been accomplished or even sought.

    Instead the Soviet Government has, by its legislation,

    stated its claim to territorial waters. By a decree of

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

    territorial waters along the coast was changed to a twelve

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

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

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

    made applicable to all the coastal waters of the Soviet

    Union except where expressly provided otherwise by inter–

    national agreement. 38 It must be assumed that this twelve

    mile limit for territorial waters became thereby applicable

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

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

    adoption of the Air Code, as previously cited in this

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

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

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

    above the territorial waters established by the laws of

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

    would appear that the USSR has limited its airspace claims

    with great care and that these claims do not extend beyond

    the airspace over lands and waters within the Soviet twelve

    mile limit. At least other States are certainly entitled

    to rely upon this construction, notwithstanding the broad

    claims sought to be established by Lakhtine.

            Further doubt as to whether the Soviet Govern–

    ment supports the sector theory as a basis of airspace

    sovereignty beyond the terms of the decree of 1926 is

    furnished by its action in 1937 in seeking to take physical

    possession of a north polar area. Lakhtine had called

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

    section of the meridian lines of the sectors into which

    he divided the Arctic, stating:

            "Neither legally, nor in fact does it

    belong to anyone. It might be represented

    as an hexahedral frontier post on the sides

    of which might be painted the national colors

    of the State of the corresponding sector." 39

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

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

    any part of the polar seas was needed to establish Soviet

    title within its sector, and no Soviet entry into sectors

    of other States would be legally justified. Nevertheless,

    in preparation for the trans-polar flights which later

    took place, the Soviet Government dispatched an expedition

    by air to the north polar area. This expedition landed

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

    permanent base for radio and meteorological purposes.

    According to press dispatches from Moscow, the Soviet

    Government immediately claimed sovereignty over the polar

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

    permanent settlement in the vicinity. 40 No reference to

    the sector theory to support such claim seems to have been

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

    originally located on pack ice which under the sector

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

    1937 this "permanent" base had drifted 138 miles toward

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

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

    about 1100 miles. 44 When the party was rescued on

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

    approximately 1500 miles. 45 The settlement originally

    established under the Soviet flag in the "Canadian sector"

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

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

    strate more clearly that not even the Soviet Government

    relies upon the sector theory as a basis for international

    determination of surface or airspace rights over the Arctic

    Ocean. In fact the attempted settlement on the polar ice

    appears to be an abandonment of the sector theory and a

    reliance upon the principles of "effective occupation"

    as the basis of territorial sovereignty.

            The States other than the USSR which face the

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

    States) are parties to the Chicago Convention on Inter–

    national Civil Aviation of 1944 (cited previously in

    this arcticle). By this convention each contracting state

    recognizes that every State has complete and exclusive

    sovereignty over the airspace above its land areas and

    the territorial waters adjacent thereto. Inherent in

    the convention is the accepted doctrine that airspace

    over lands which are under the sovereignty of no State

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

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

    Unless by unwritten and customary international law the

    parties to the Chicago convention are in agreement that

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

    Arctic and that this special regime shall determine what

    areas constitute national lands and territorial waters in

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

    territorial surface rights in the Arctic (and therefore air–

    space rights) are the normal and generally accepted rules of

    international law as to what constitutes land territory,

    territorial waters, and the high seas.

            But it is quite apparent that neither the sector

    theory nor any other special regime as to Arctic surface

    sovereignty has been accepted into international law by the

    parties to the Chicago Convention. While the sector

    principle has been semi-officially supported in Canada

    as to discovered and undiscovered lands in the so-called

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

    control water areas in the sector beyond the accepted three

    mile limit of territorial waters has never been stated. The

    sector principle has been authoritatively denied by both the

    United States and Norway directly interested in the Arctic

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

            As to the United States, a suggestion was made

    in 1929 to President Hoover that the Government should

    initiate an international arrangement to partition the

    Arctic between the United States, Canada, Denmark, Norway

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

    Department. The Secretary of the Navy officially replied

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

    effect that the action proposed:

    • "(a) Is an effort arbitrarily to divide

      up a large part of the world's area amongst

      several countries;

    • 026      |      Vol_XI-0085                                                                                                                  
    • (b) Contains no justification for claiming

      sovereignty over large areas of the world's

    • (c) Violates the long recognized custom

      of establishing sovereignty over territory by

      right of discovery;
    • (d) Is in effect a claim of sovereignty

      over high seas, which are universally recognized

      as free to all nations, and is a novel attempt

      to create artificially a closed sea and thereby

      infringe the rights of all nations to the free

      use of this area.

            I, therefore, consider that this government

    should not enter into any such agreement as

    proposed." 46

            This authoritative statement refutes any impli–

    cations which might be drawn from the 1924 testimony of

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

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

    called that Secretary of State Hull on November 13, 1934

    advised the British Ambassador, (in a discussion as to

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

    established principles of international law... I can not

    admit that sovereignty accrues from more discovery un–

    accompanied by occupancy and use." 48 As further indication

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

    in 1937, when considering problems as to polar areas,

    discussed the possibility of a State with land bordering

    on the polar area seeking to prohibit the entrance of

    aircraft polarward from its coast. It held that no such

    right existed - thus in substance denying the validity of

    the sector principle as applicable to polar water areas

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

    the State facing the Arctic and the airspace over such

    areas, saying:

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

    to regulate the movement of foreign aircraft

    is limited to the air within its jurisdiction

    which extends to the air above its land and

    maritime boundaries. Generally accepted

    maritime boundaries now extend at least to

    three miles from the low-water mark along the

    coast and three miles outside the limits of

    its bays. Whether the direction is toward

    the equator or toward the pole makes no

    difference —the jurisdiction extends sea–

    ward for three miles." 49

            Clearly the United States has never agreed to a special rule

    applicable to the Arctic for a determination of what consti–

    tutes land and territorial waters.

            In 1930 the Government of Norway expressly dis–

    approved the sector theory. In recognizing the sovereignty

    of Canada over the Sverdrup Islands, a Norwegian note

    stated that the recognition of such sovereignty" over these

    islands is in no way based on any sanction whatever of

    what is named the 'sector principle.'" 50

            The Permanent Court of International Justice

    in stating that international law "governs relations between

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

    States therefore emanate from their own free will as

    expressed in conventions or by usages generally accepted

    as expressing principles of law and established in order

    to regulate the relations between these co-existing

    independent communities or with a view to the achievement

    of common aims." 51

    028      |      Vol_XI-0087                                                                                                                  

            The sector principle has obviously not been

    accepted as part of international law as thus authori–

    tatively stated. No general international convention has

    affirmed the sector principle, nor has it been recognized

    by international usage. Rather the normal rules of inter–

    national law as to what may be considered as land and

    territorial waters must be the source for fixing the

    recognized extent of national airspace Arctic rights.

            The first question to be answered is whether

    the rules of international law have been so modified as

    to permit the existence in the Arctic of sovereignty in

    land territories which have never been "effectively oc–

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

    on a statement of what is meant by effective occupation.

    The denial of the sector theory carries with it the denial

    of sovereignty to undiscovered lands and the superjacent

    airspace. As to lands already discovered, von de Heydte

    has thus stated the rule:

            "Effectiveness means actual displaying

    of sovereign rights; it means maintenance

    of a certain order corresponding to the

    international standard, which, of course, is

    different in territories sparsely inhabited

    and scarcely frequented by foreigners from

    what it is in densely peopled trading

    places." 52

            Lindley, speaking of the north polar regions, states the

    applicable international law rule to be:

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

    occupation would be rendered effective by the

    establishment of any organization (however

    rudimentary) or of any system of control,

    which, having regard to the conditions under

    which the area appropriated was being used

    or was likely to be used, was reasonably

    sufficient to maintain order among such

    persons as might resort there." 53

            The rules of effective occupation, as thus

    stated, may be applied in the Arctic without any

    departure from the accepted principles of international

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

    which there claims territorial rights and reasonably

    exercises jurisdiction and control over the land areas

    concerned may be admitted to have sovereignty. This

    sovereignty extends to the airspace over the lands in

    question and to normal adjacent territorial waters.

    It does not extend further.

            The remaining question - as to whether any

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

    Ocean beyond the limit of normal territorial waters may

    be treated as possibly coming under the sovereignty of a

    single State - presents much greater difficulty. It has

    been suggested that claims of sovereignty might be con–

    sidered if a particular area "is possessed of a surface

    sufficiently solid to enable a man to pursue his occu–

    pations thereon and which also in consequence of its

    solidity and permanence constitutes in itself a barrier

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

            As to most of the Arctic Ocean area the answer to

    the problem seems fairly clear. From Alaska across the North

    Pole to Spitzbergen is about 1900 statute miles. From the

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

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

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

    mittedly almost continuously ice-covered. Only near the coasts

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

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

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

    Established habitation and occupation is clearly impracticable.

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

    Soviet expedition to place a "permanent" settlement near the

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

    said in 1910:

            "But the ice at the North Pole is

    never at rest. It is in continual motion.

    It moves slowly in a direction from Bering's

    Strait towards the Atlantic Ocean. Con–

    sequently any habitation fixed upon it would

    be continually moving. And such possible

    occupation would be too precarious and shifting

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

    so the rules of the Law of Nations that

    recognize the freedom of the high seas would

    seem to apply naturally to a moving and

    shifting substance like the North Polar Sea

    ice at all points beyond the customary

    three-mile limit from the shore." 55

    031      |      Vol_XI-0090                                                                                                                  

            While it may be contended that under modern aviation

    conditions such ice-covered seas can be controlled from the

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

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

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

    space above and to maintain exclusive control in such areas

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

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

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

    and all other States thereby excluded, than to admit that

    the open seas and the airspace above them may legally be

    similarly seized and held.

            A century and a quarter ago a great and wise

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

    of the seas:

            "Upon the ocean, then in time of peace,

    all possess an entire equality. It is the

    common highway of all, appropriated to the

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

    self a superior or exclusive prerogative there.

    Every ship sails there with the unquestionable

    right of pursuing her own lawful business

    without interruption; but, whatever may be

    that business, she is bound to pursue it in

    such a manner as not to violate the rights

    of others." 56

            Justice Story's statement is as true today of the

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

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

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

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

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

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

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

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

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

    • Two corollary problems must be considered:

      1) What is the status of the airspace over fixed ice along

      occupied coasts in the Arctic? and 2) What is the status of

      the airspace over straits bounded on each side by the land

      territory of the same State and connecting sea areas which

      are wholly or at times navigable?

            As stated earlier, the subjacent State has ex–

    clusive sovereignty in the airspace over such territorial

    waters adjacent to its coasts as are recognized by inter–

    national law as properly coming within its jurisdiction.

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

    ritorial waters, except in extraordinary cases, should be

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

    tending outward over the water to the width recognized for

    territorial waters by international law, even though the

    water is permanently ice-covered to that distance and

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

    judgment of the present author, can be considered as valid

    would be a case where the permanent ice adjacent to the

    shore is actually occupied and permanently used throughout

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

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

    State can demonstrate the existence of such permanently used

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

    the true coastline might be considered as being on the fixed

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

    ritorial waters would then be considered as extending out to

    the normal width, and the subjacent State might reasonably

    claim airspace sovereignty over such permanently occupied

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

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

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

    validly demonstrated by the State seeking surface and air–

    space sovereignty by actual occupation of the fixed ice beyond

    the real coastline. This suggested exception is analagous to

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

    territories by filling in and physically occupying areas which

    had formerly been part of its navigable territorial waters.

            As to the straits, the normal rule of international

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

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

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

    but sufficiently narrow to be controlled by coastal batteries

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

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

    fication of International Law in 1930 is reasonably sound.

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

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

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

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

    not exceeding two miles in breadth surrounded by territorial

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

    such straits are thereby territorial waters, the airspace

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

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

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

    such airspace is usable for international flight even though

    the area below be frozen.

    035      |      Vol_XI-0094                                                                                                                  



            The following rules of international air law

    applicable to airspace sovereignty in the Arctic may there–

    fore be stated:

    • 1) The "sector" theory is not part of inter–

      national law and cannot be accepted or used

      as the basis for determining Arctic airspace

    • 2) In the Arctic as elsewhere each State has

      complete and exclusive sovereignty in the air–

      space over its territory and such space is in

      fact an integral part of national territory.
    • 3) Surface territory in the Arctic, as else–

      where for the purpose of airspace sovereignty,

      includes lands and adjacent territorial waters.

      Airspace over recognized and admitted terri–

      torial waters is in the same legal status as

      airspace over land territory.
    • 4) Every State has complete control of the

      airspace included within its territory, has

      the exclusive right to fly in that airspace,

      and may exclude all foreign aircraft or admit

      them on such terms as it seems fit.

    • 036      |      Vol_XI-0095                                                                                                                  
    • 5) In the determination of what areas in the

      Arctic constitute the lands and territorial

      waters of any State the normal rules of inter–

      national law will apply subject to the following

    • (a) In determining whether or not a State

      has "effectively occupied" lands in the

      Arctic the nature of the terrain must

      be considered and such occupation will

      be deemed effective if the State main–

      tains adequate jurisdiction and control

      in the area so as to protect such in–

      habitants as may be there and to main–

      tain order.
    • (b) In determining the extent of terri–

      torial waters, the normal rules will

      apply unless water areas adjoining

      occupied lands are permanently covered

      with ice and continuously used and oc–

      cupied by the adjacent State as if they

      were land, in which case and on proof

      of such occupation, the coast line may

      be considered as beginning at the edge

      of the permanently occupied ice.
    • 6) Airspace over the high seas is free to the use

      of all States and cannot be subject to the sove-

      037      |      Vol_XI-0096                                                                                                                  
      reignty of any single State. The ice-covered

      areas of the Arctic Ocean must be treated as

      high seas, and the airspace over such areas

      as free to the use of all.

    • 001      |      Vol_XI-0097                                                                                                                  







            1. Translated from the official French text

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

    de la conférence . Partie VII, Préparation et signature

    des traités et conventions divers, A - Conventions

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

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

            2. Full text in: International Convention

    Relating to the Regulation of Aerial Navigation , dated

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

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

    Manley O. Hudson, ed., International Legislation ,

    Washington, Carnegie Endowment for International Peace,

    1931, Vol. 1, pp. 359–376.

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

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

    1912, p. 71.

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

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

    Neutrality Laws , Regulations and Treaties of Various Countries .

    Washington, Carnegie Endowment for International Peace, 1939,

    Vol. 2. p. 807.

    002      |      Vol_XI-0098                                                                                                                  

            5. Henry Woodhouse, Textbook of Aerial Laws

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

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

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

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

            7. Commercial Aviation. Convention between

    the United States of America and other American Republics ,

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

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

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

    pp. 2356–2369.

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

            9. International Civil Aviation Conference,

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

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

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

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

            10. Timothy Andrew Taracouzio. The Soviet Union

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

            11. As reprinted and translated in Taracouzio,

    ibid ., p. 401.

    003      |      Vol_XI-0099                                                                                                                  

            12. For a general discussion of some of the

    principal questions, see: Thomas Willing Balch, "Les

    Regions arctiques et antarctiques et le droit inter–

    national," Revue de droit international et de législation

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

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

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

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

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

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

    Haywood Hackworth, Digest of International Law , Washington,

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

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

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

    New York, American Geographical Society (Special Publi–

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

    Title to the Arctic Islands," Canadian Historical Review ,

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

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

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

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

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

    Plischke, "Trans-Polar Aviation and Jurisdiction over

    Arctic Airspace," American Political Science Review ,

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

    Nature juridique du territorie," Hague, Académie de droit

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

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

    International Law," American Journal of International Law ,

    003a      |      Vol_XI-0100                                                                                                                  

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

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

    U.S. Naval War College, International Law Situations

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

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

    de la souveraineté des pôles," Revue générale de droit

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

    "La Question de la souveraineté des terres arctiques,"

    Revue générale de droit international public , Vol. 15,

    1908, pp. 78–125, 185–209, 401–423.

    004      |      Vol_XI-0101                                                                                                                  

            13. Debates of the Senate of the Dominion

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

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

    of International Law , Washington, U. S. Government

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

    Andrew Taracouzio, Soviets in the Arctic . New York,

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

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

    p. 464.

            14. Hackworth, Digest of International Law ,

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

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

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

    1933, p. 33.

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

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

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

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

    Committee on Naval Affairs, Hearing on House Resolution

    149 , concerning Contemplated Flight of the Shenandeah to

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

    005      |      Vol_XI-0102                                                                                                                  

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

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

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

            18. Hackworth, Digest of International Law ,

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

    over the Arctic," American Journal of International Law ,

    Vol. 24, 1930, p. 708.

            19. Ibid . See also: Miller, "Political

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

            20. Debates of the House of Commons of the

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

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

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

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

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

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

    War College, International Law Situations 1937 , Washington,

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

            21. Hackworth, Digest of International Law ,

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

    006      |      Vol_XI-0103                                                                                                                  

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

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

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

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

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

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

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

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

    p. 348.

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

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

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

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

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

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

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

    Brief History of Polar Exploration since the Introduction

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

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

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

    juridique des territoires polaires septentrionaux," Droit

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

    007      |      Vol_XI-0104                                                                                                                  

            28. "Rights over the Arctic," American Journal

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

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

    Naval War College, International Law Situations 1937 ,

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

    op. cit ., pp. 321–366.

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

            30. Ibid ., p. 711.

            31. Ibid ., p. 712.

            32. Ibid ., p. 713.

            33. Ibid ., pp. 714–715.

            34. Ibid .

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

    this statement of Breitfuss, see: Breitfuss, "Territorial

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

            36. At least one careful student of the situation

    feels that the Soviet Government "has elected to forego the

    application of sectorism to airspace in the Arctic,

    008      |      Vol_XI-0105                                                                                                                  

    adhering rather to the older, established principles of

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

    Aviation and Jurisdiction over Arctic Airspace," American

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

            37. Taracouzio, The Soviet Union and Inter–

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

            38. Ibid .

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

    p. 717.

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

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

    p. 359.

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

            43. Ibid ., August 29, 1937.

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

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

    009      |      Vol_XI-0106                                                                                                                  

            46. Hackworth, Digest of International Law ,

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

            47. See Note 17 supra .

            48. Hackworth, Digest of International Law ,

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

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

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

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

            50. Hackworth, Digest of International Law ,

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

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

    p. 111.

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

    Permanent Court of International Justice, Judgment 9,

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

    ed., World Court Reports , Washington, Carnegie Endowment

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

            52. Friedrich August Freiherr ven de Heydte,

    "Discovery, Symbolic Annexation and Virtual Effectiveness

    in International Law," American Journal of International

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

    010      |      Vol_XI-0107                                                                                                                  

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

    ment of Backward Territory in International Law
    , New York

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

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

    Sec. 104A, p. 348.

            55. Thomas Willing Balch, "The Arctic and

    Antarctic Regions and the Law of Nations," American

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

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

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

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

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

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

            58. Hackworth, Digest of International Law ,

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

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