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Legal Terminology for the Upper Regions of the Atmosphere and for the Space Beyond the Atmosphere

Published online by Cambridge University Press:  28 March 2017

John C. Hogan
John C. Hogan*
Affiliation:
Santa Monica, California
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Extract

There are no established definitions in law for describing the upper regions of the atmosphere or the space beyond the atmosphere. The legal dictionaries and the law encyclopedias do not even refer to the stratosphere or the areas above.

Type
Research Article
Information
American Journal of International Law , Volume 51 , Issue 2 , April 1957 , pp. 362 - 375
Copyright
Copyright © American Society of International Law 1957

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References

1 Jacobini, H. B., “Problems of High Altitude or Space Jurisdiction,” 6 Western Political Quarterly 681, note 5 (1953)CrossRefGoogle Scholar. For recent articles on law and activities in the upper regions of the atmosphere (and beyond), see Hogan, John C., “Space Law Bibliography,” 23 Journal of Air Law and Commerce 317–325 (1956)Google Scholar.

2 The Journal of Space Flight has published a list showing model, type, and flight characteristics of twenty-five different high-altitude vehicles which the Soviet Union has under development. These include a satellite vehicle, an intercontinental ballistic missile, a medium-range ballistic missile, a supersonic glide missile, a guided aircraft rocket, several manned rocket planes, etc. A comparable development in this technology also exists in the United States. See Zaehringer, Alfred J., “Table of Soviet Missiles,” 8 Journal of Space Flight 1–4 (1956)Google Scholar.

3 See the recent Canadian case, Lacroix v. the Queen, 4 D. L. B. 470–478 (1954).

4 The term is used but not defined in Art. 1, Paris Convention of 1919, and in Art. 1, Chicago Convention of 1944. Cf. Shawcross and Beaumont on Air Law 175 (London, 1951). See also Pépin, Eugène, The Legal Status of the Airspace in the Light of Progress in Aviation and Astronautics (Pub. No. 2, Institute of International Air Law, McGill University, Montreal, 1957), p. 3 Google Scholar.

5 Arnold Duncan McNair, The Law of the Air 297 (2nd ed. by Michael R. E. Kerr and Robert A. MacCrindle, London, 1953). See Cooper, John C., “Roman Law and the Maxim Cujus Eat Solum in International Law,” 1 MeGill Law Journal 23–65 (1952–1955)Google Scholar.

6 By decree of Nov. 15, 1921, Peru proclaimed freedom of aviation at an altitude above 3,000 metres. Oppikofer, in 1930, observed that “Peru constitutes an exception. … This is a last survival of Fauchille’s liberal theories. …” See Enquiries into the Economic, Administrative, and Legal Situation of International Air Navigation (League of Nations, 1930), No. C, 339, M-139 (1930), VIII, p. 112. Peru has now ratified the Chicago Convention of 1944.

7 See Hotchkiss, Henry G., A Treatise on Aviation Law 20–34 (New York, 1938)Google Scholar.

8 Prosser, William L., Handbook of the Law of Torts 87–88 (St. Paul, 1941)Google Scholar.

9 Shawcross and Beaumont, op. cit. 173–174. See also Wagner, Wienczyslaw, Les Liberiés de l’Air 27–42 (Paris, 1948)Google Scholar.

10 Ch. I, Art. 1, Convention on Civil Aviation, in Proceedings of the International Civil Aviation Conference, Chicago, Illinois, November 1 to December 7, 1944, Vol. I, p. 147 (Washington, 1948).

11 But see McNair, op. cit. 8, who says that “the fact that most States are willing to exchange a mutual right to entry and passage no more derogates from the principle of national sovereignty than does the admission of foreign ships to purely national waters by the Barcelona Convention of 1921 upon navigable waterways of international concern.” Cf. state control over marginal seas and territorial waters: Whittemore Boggs, S., “National Claims in Adjacent Seas,” 61 Geographical Review 185–209 (April, 1951)CrossRefGoogle Scholar.

12 See note 10 above.

13 Shawcross and Beaumont, op. cit. 175, discussing “What is Airspace?”. The U. S. Civil Aeronautics Act of 1938 defines “navigable airspace” as that airspace above the minimum altitudes of flight prescribed by regulations under the Act. See Sec. 1 (24) of the Act, as amended, 49 U.S.C. 401.

14 Proceedings of the American Society of International Law, Fiftieth Annual Meeting, Washington, D. C., April 25–28, 1956, pp. 85–93.

15 Ibid., p. 88.

16 Ibid., p. 89. A positive step towards the formulation of standard legal definitions for the upper regions of the atmosphere and beyond is reported to have been taken at the Tenth Assembly of the International Civil Aviation Organization meeting at Caracas. Professor Cooper, in a document made available to all members of ICAO, tentatively suggested the adoption of a new convention which would have as its purposes: (1) to reaffirm the Chicago Convention of 1944 giving the subjacent state full sovereignty in areas of the atmospheric space above it, up to heights where “aircraft,” as now defined, may be operated; such areas being designated “territorial space”; (2) to extend the sovereignty of the subjacent state upward to 300 miles above the earth’s surface, designating this second region as “contiguous space”; and to provide for a right of transit through this zone for all non-military devices, when ascending or descending; (3) to accept the principle that all space above “contiguous space” is free for the passage of all such mechanical contrivances (London Times, June 29, 1956). This proposal, which was first disclosed by Professor Cooper in his address before the 1956 Annual Meeting of the American Society of International Law, introduces two new terms—“territorial space” and “contiguous space”—both of which refer to regions of the atmosphere, and it uses the term “space” to refer to all areas beyond 300 miles above the surface of the earth, i.e., the uppermost region of the exosphere and solar and galactic space.

17 1956 Proceedings of the American Society of International Law 94.

18 Ibid. 101.

19 Ibid. 108. Cf. idem, “Artificial Satellites: A Modest Proposal,” 51 A.J.I.L. 74–77 (1957)Google Scholar.

20 Mellor, Alec, “L’Astronautique et le Droit,” 18 Revue générale de l’Air 402–403 (1955)Google Scholar.

21 Horsford, C. E. S., “The Law of Space,” 14 Journal of the British Interplanetary Society 145 (1955)Google Scholar. The principal argument advanced for projecting state sovereignty “all-the-way-up” has been national security. Even if this were physically possible, there is probably a point in solar space where militarism from above, against the land surfaces of the earth, ceases to be of any significance.

22 Meyer, Alex, “Legal Problems in Space-Flight,” Annual Report of the British Interplanetary Society 353 (1952)Google Scholar. See also idem, “Bechtliche Probleme des Weltraum-flugs,” 2 Zeitsehrift für Luftrecht 31–43 (1953)Google Scholar.

23 Mateesco, Nicolas, “A qui appartient le milieu aerien?” 12 Revue du Barreau de la Province de Québec 227 at 240–242 (1952)Google Scholar. See also Ming-Min Peng, “Le vol à haute altitude et 1’article 1 de la convention de Chicago, 1944,” ibid. 277–292.

24 See Akademiia Nauk SSSR, Institut prava, Mezhdunarodnoe Pravo, “Regime of Airspace,” pp. 219–274 (Moscow, 1947); cf. ibid., 1951 ed., pp. 318–321.

25 Kislov, A. and Krylov, S., “State Sovereignty in Airspace,” Mezhdnnarodnaia Zhizn (International Affairs), No. 3 (March, 1956), pp. 35–44 Google Scholar. English-language version printed in Moscow.

26 Ibid. 42–43.

27 The United States Air Force Dictionary, p. 36 (ed. by Woodford Agee Heflin, Research Studies Institute, Air University, 1956).

28 This nomenclature has been accepted by the Brussels committee for use in scientific works. Kaplan, Joseph, “The Earth’s Atmosphere,”. 41 American Scientist 49 (1953)Google Scholar. Scientists, however, have not yet agreed on the actual upper and lower limits in the case of some of these regions, and limits based upon temperature vary with latitude, seasons, and from day to day anyway.

29 Chapman, Sydney, “Upper Atmospheric Nomenclature,” 55 Journal of Geophysical Research 397 (1950)CrossRefGoogle Scholar.

30 Grimminger, G., Analysis of Temperature, Pressure, and Density of the Atmosphere Extending to Extreme Altitudes 2 (RAND Corp., Santa Monica, 1948)Google Scholar.

31 Cf. Kellogg, William W., Diagram of the Structure of the Upper Atmosphere (P-554, RAND Corp., Santa Monica, Aug. 1, 1954)Google Scholar.

32 Kallmann, H. K., A Study of the Structure of the Ionosphere 16 (Ph.D. Dissertation, Univ. of Calif. at Los Angeles, 1955, P-638, RAND Corp., Santa Monica)Google Scholar.

33 In the Swetland case, the court used the terms “upper stratum” and “lower stratum” in the adjudication of a dispute between landowner and aviator arising in the troposphere. See Swetland et al. v. Curtiss Airports Corporation et al., 55 F. 2d 201 (1932).

34 See Webster’s New International Dictionary, 2nd ed., unabridged, 1947.

35 Kallmann, op. cit. 16.

36 Capt. Iven C. Kincheloe, in a Bell X-2 rocket plane, climbed to 126,000 feet in an unofficial flight in August, 1956, at the Edwards Air Force Base in California. New York Times, Nov. 9, 1956, p. 58.

37 The previous record of 72,395 feet, established in 1935, was broken on Nov. 8, 1956, when Lt. Comdrs. Malcolm D. Boss and Morton L. Lewis reached a new record altitude of 76,000 feet in a pressurized gondola attached to a helium-filled balloon. Ibid., p. 1.

38 See diagram of “The Earth’s Atmosphere” in Kaplan, Joseph, “The Earth’s Atmosphere,” reprinted from 41 American Scientist 49–65 (1953)Google Scholar.

39 Chapman, loc. cit. 395–396.

40 Kallmann, op. cit. 17.

41 Chapman, loc. cit. 396.

42 M. Nicolet and P. Mange, An Introduction to the Study of the Physical Constitution and Chemical Composition of the High Atmosphere (Ionospheric Research Laboratory, Pennsylvania State College, Contract No. AF 19 (122)–44, April, 1952).

43 See diagram of “The Earth’s Atmosphere,” Kaplan, loc. cit., facing p. 49.

44 Kallmann, op. cit. 17.

45 See International Geophysical Year, a special report prepared by the National Academy of Sciences for the Committee on Appropriationg of the United States Senate, Doc. No. 124, pp. 19–21 (U. S. Government Printing Office, Washington, D. C., 1956). See also Krieger, F. J., A Casebook on Soviet Astronautics (RM-1760, RAND Corp., June 21, 1956)Google Scholar, which contains a discussion of Soviet interests in space, including 200 semi-technical references and 21 appendices consisting of English translations of Bussian-language works on space flight.

46 Cooper, John Cobb, “High Altitude Flight and National Sovereignty,” 4 International Law Quarterly 415 (1951)Google Scholar.

47 Cooper, John Cobb, “Legal Problems of Upper Space,” 1956 Proceedings of the American Society of International Law 90–91 Google Scholar.

48 From the point of view of the variations in electron density with height, the ionosphere is divided into layers known as the E, F, and Gr layers. There is no advantage in law for adopting this further division or terminology.

49 Grimminger, op. cit. 2. Cf. Bremmer, H., Terrestrial Radio Waves 2 (Brussels, 1949)Google Scholar.

50 Kaplan, loc. cit. 61.

51 Shawcross and Beaumont say that “Even the word ‘air’ has no definite meaning, and is often used where ‘atmosphere’ would be more apt.” Op. cit. 17, note (a).

52 Milham has declared: “As a general conclusion, then, it may be stated that a sufficient quantity of air extends to a height of 300 kilometers to give us an indication of its presence. – The earth’s atmosphere cannot extend more than 21,000 miles and turn with the earth as it rotates on its axis. At this distance centrifugal force due to the rotation and gravitational force attraction balance so that the air would be abandoned.” Milham, Willis I., Meteorology 19–20 (New York, 1918)Google Scholar.

53 Grimminger, op. cit. 61.

54 Kaplan, loc. cit., Chart of “The Earth’s Atmosphere” facing p. 49.

55 Strughold, H., “Space Equivalent Conditions Within the Earth’s Atmosphere: Physiological Aspects,” 1 Astronautica Acta 33–34 (1955)Google Scholar. Wernher von Braun says that “High-altitude rockets have repeatedly risen beyond the upper fringes of the atmosphere and have shown that rockets can be propelled and guided through the vacuum of outer space. Even animals have been carried aloft in such flights and they are in as good a state of health today as they have ever been before.” See “Statement,” ibid. 1.

56 Haber, H., “Manned Plight at the Borders of Space,” 22 Journal of the American Rocket Society 269 (1952)CrossRefGoogle Scholar.

57 Schachter, Oscar, “Legal Aspects of Space Travel,” 11 British Interplanetary Society Journal 14–18 (1952)Google Scholar.

58 Jacobini, H. B., “Problems of High Altitude or Space Jurisdiction,” 6 Western Political Quarterly 681, note 5 (1953)CrossRefGoogle Scholar.

59 Danier, E., “Les Voyages Interplanétaires et le Droit,” 15 Revue générale de l’Air 423 (1952)Google Scholar.

60 Wilfred Jenks, C., “International Law and Activities in Space,” 5 International and Comparative Law Quarterly 103 (1956)Google Scholar.

61 “The first is that any projection of territorial sovereignty into space beyond the atmosphere would be inconsistent with the basic astronomical facts. The revolution of the earth on its own axis, its rotation around the sun, and the motions of the sun and the planets through the galaxy all require that the relationship of particular sovereignties on the surface of the earth to space beyond the atmosphere is never constant for the smallest conceivable fraction of time. Such a projection into space of sovereignties based on particular areas of the earth’s surface would give us a series of adjacent irregularly shaped cones with a constantly changing content. Celestial bodies would move in and out of these cones all the time. In these circumstances, the concept of a space cone of sovereignty is a meaningless and dangerous abstraction.” Ibid. 103–104.

62 Mr. Karsten introduced a Bill in the House of Representatives which provided for the establishment of a “Joint Committee on Extra-terrestrial Exploration.” See H. R. 7843 (Aug. 2, 1955).

63 Baker, Robert H., Astronomy 162 (New York, 1950)Google Scholar.

64 Ibid. 460.

65 Ibid. 3.

66 “Metagalactic Space is space outside the limits of the Galaxy; Anagalactic Space, that within its limits.” Norton, Arthur P., A Star Atlas 10 (London, 1946)Google Scholar.

67 Cf. Hale, George E., Beyond the Milky Way 69 ff. (New York, 1926)Google Scholar.

68 New York Times, Jan. 11, 1957, p. 10; 36 Dept. of State Bulletin 124 (1957).

69 New York Times, Jan. 15, 1957, p. 4; 36 Dept. of State Bulletin 226, 227 (1957).