(In the March and April issues of the JAG JOURNAL were two articles which discussed the history of the 3-mile limit of territorial waters of the United States, including the right of selfdefense beyond the 3-mile limit. An analogous problem relating to the control of the airspaces by a sovereign is discussed in this article.)

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IN CONSIDERING the question of control of the airspace above the earth, it is helpful to keep in mind the same distinction between a right of sovereignty over a particular area and a right to exercise a protective jurisdiction as has been applied hereinbefore with respect to waters within and without the national domain. The general rule of international law as stated by Professor Hackworth, Digest of International Law, volume IV, page 358, reads as follows:

Multilateral conventions and bilateral conventions and agreements are now based upon the assumption that the State has exclusive sovereignty in the airspace over its territory and territorial waters.

Present day concepts with respect to airspace reservations were first concretely expressed at the Paris Peace Conference of 1919. On March 12, 1919, a resolution was adopted by the conference creating what came to be known as the Aeronautical Commission. The Commission adopted the following fundamental principle:

1. Recognition: (1) Of the principle of the full and absolute sovereignty of each State over the air above its territories and territorial waters, carrying with it the right of exclusion of foreign aircraft; (2) of the right of each State to impose its jurisdiction over the air above its territory and territorial waters. It is a matter of interest that the above-quoted principle was proposed by the American delegation. The adoption by the Aeronautical Commission of the principle of sovereignty was finalized, carrying with it the right to exclude foreign aircraft from national airspace. The theory of

international freedom of flight, either in the entire airspace or in some undefined upper zone, was definitely repudiated. The principle adopted by the Aeronautical Commission was later adopted by the Paris Convention itself on October 13, 1919, article 1 of which provided as follows:

The high contracting parties recognize that every power has complete and exclusive sovereignty over the airspace above its territory. Although the United States did not ratify the Paris Convention of 1919, it definitely asserted its Sovereignty over its airspace in the Air Commerce Act of 1926, the Civil Aeronautics Act of 1938, and the Pan-American Convention signed at Havana in 1928. At the International Civil Aviation. Conference in Chicago in 1944, there were many disagreements, but no one questioned the right of each nation to control its own airspace. The significance of the Chicago Convention is expressed by a leading contemporary authority as follows:

In language of the new Chicago Convention on International Civil Aviation, recently ratified by the United States: "The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory." This is the accepted world-wide rule for the conduct of any sort of international transport through the airspace (Cooper, The Right to Fly, p. 34).

The Air Commerce Act of 1926, 49 U. S. C. 174, authorizes the President to establish airspace reservations for purposes of self-defense within. the United States and over its territorial waters, The President exercised this power on February 14, 1941, when, by a series of Executive orders, defensive sea areas and naval airspace reservations were established for the purposes of national defense around Guam, American Samoa, Hawaii, and Alaska. However, it is observed that in none of these instances were the defensive sea areas and naval airspace reservations extended beyond the 3-mile limit as was done in other instances where defensive sea areas only were established.

There appears to be a limitation on air power in international law which does not impede sea power. This limitation is pointed up by Mr. Cooper as follows:

While the acceptance of the theory of exclusive national sovereignty in the airspace over national territory and territorial waters did carry with it the acceptance of the further theory that aircraft of all nations are free to fly in the airspace over the high seas where no national sovereignty exists, there the analogy between the sea and the air abruptly ends. The right to trade by sea anywhere in the world is part of sea power. The necessity for any nation to obtain special permission from every other nation with which it wishes to trade by air is a limiting factor of air power. (Cooper, The Right to Fly, p. 42, with italics supplied.)

While the principle of the "complete and exclusive sovereignty" of the separate States over the airspace above their territories has been repeatedly affirmed, it would seem that even in the absence of conventional agreements the aircraft. of one State have a dubious right of innocent passage over the territory of other States when under stress of weather conditions they are obliged to deviate from their course. On August 9, 1946, a United States airplane, while in a regular flight from Vienna to Udine, encountered bad weather and, while attempting to find its bearings, was attacked by Yugoslav fighters and forced to crash land. The United States protested, inquiring whether the usual courtesies, including the right of innocent passage, could not be expected from the Yugoslav Government under such conditions. Before an answer was received, an unarmed American transport plane was shot down by Yugoslav aircraft on August 19, resulting in the death of the pilot and crew. In answer to a second protest the Government of Yugoslavia expressed regrets that the pilots lost their lives when the plane "crashed after disobeying signals to land." Marshal Tito then stated that planes would not be fired upon in the future, but that they should be invited to land, and if they refused to do so, their identity should be taken so that "any necessary steps could be undertaken through appropriate channels." The United States claimed indemnification for the loss of lives and property. On July 19, 1918, the Yugoslav Government finally

paid the claim of the United States, but did not make any express recognition of the right of innocent passage. Others may argue, and with perhaps some merit, that the paying of the United States claim was tantamount to a de facto recognition of the principle of international law of "innocent passage" with respect to aerial navigation. One thing is clear, however: Yugoslavia recognized that the measure employed to enforce its sovereignty over foreign errant aircraft was an unreasonable measure under the state of facts.

From the above it is apparent that stricter regulation of air travel is recognized in international law than that which applies to surface navigation. By the same token stricter measures are taken to thwart acts by airplanes which are considered to be threats to national security. Vivid examples of sterner measures of repelling such threats are found in the conduct of the Russians late in 1945, when they used fighter planes that actually fired on a United States Navy flying boat claimed to have been flown within what the Russians considered to be their territorial waters. The Russians accused the United States flying boat of firing on the Russian fighters first. Therefore, they justified the retaliatory fire as a reasonable measure of self-defense. If the facts were as stated by the Russians, which this Nation strongly denies, it is believed that the measures taken, i. e., shooting, were reasonable. Regardless of the truthfulness of the Russian allegations, it appears that the principle was recognized that, when an airplane of a foreign power threatens the national security of a nation, the threatened nation may take reasonable steps to repel the threat whether within or without the airspace above territorial waters.

A current peacetime innovation bearing on the control of the airspaces is the action of Congress with respect to H. R. 2546. The act received the final approval of Congress on March 18, 1949, and has been sent to the President whose approval is expected momentarily. The legislation provides for the establishment and development within and without the continental limits of the United States of land-based air warning and control installations. Doubtless such land-based installations outside the continental United States, its Territories, and possessions could only be constructed pursuant to a treaty or agreement with the foreign government concerned. Such a defensive measure satis

fies the test of reasonableness under international law when account is taken of the present tenseness abroad. As of this date no protest to the legality of the proposal has been voiced by any foreign government. Nor should any legitimate protest be expected.

It would appear that the employment of such an air-warning system on the high seas aboard ships and naval carrier aircraft would enjoy the sanction of international law to an even greater degree than land-based installations of our Nation in foreign jurisdictions. While considerable time lag may be expected between the final enactment of the measure and the actual functioning of the system, common sense tells us that no abatement of threats to the security of the United States may be expected.

During this interval reliance must be made on the existing, sabotageproof, air-warning equipment on board all ships and carrier aircraft of the Navy. Such nayal equipment is now as always in an immediate state of readiness for instant use in

filling gaps in our air-warning system. Moreover, the geographical horizon of radar picket vessels and naval carrier aircraft, because of the mobility of such equipment, is almost unlimited, either in narrowing or widening the gap of surveillance. It is readily observed that the use of this air-warning system on or above the high seas would constitute no obstruction to free surface and air navigation, but it is a reasonable defensive measure calculated to thwart a hostile air attack on the United States. Nor are such sea-borne measures apt to be seized upon by a foreign government erroneously to accuse the United States of maintaining military bases abroad, since the principle of freedom of the seas prevents that strained conception.

As in the case of defensive measures which may be taken on the high seas beyond the 3-mile limit, it is concluded, as a rule of international law, that a nation may employ defensive measures in peacetime beyond the limits of its airspace reservations, provided the test of reasonableness is met.

the author. Its value to the naval service lies in the fact that it is a well-reasoned article based upon deductive logic. The recommendations are legally sound and if they are followed the result will be fairer trials and appropriate and adequate punishment of offenders. The Judge Advocate General has not officially passed upon this procedural point to the extent that his ruling is applicable to all cases which may arise involving it. Without intent to diminish in the eyes of our readers the undoubted value of this article, nevertheless it should be understood, and mentioned when the article is cited, that it does not necessarily recite the opinion of the Judge Advocate General.

have stressed the importance of adequate, preliminary investigation of every reported offense, so that the commanding officer may form a reasonable belief that an offense has been committed and that the accused is the probable offender. By means of such thorough investigative process those cases in which the accused is clearly innocent will not reach a court martial. On the other hand, cases where the guilt of an accused is clearly indicated, or where strong doubt is placed on his innocence, will more surely be brought to issue before a court. Exhaustive, sincere investigation prevents the trial of innocent men on groundless or doubtful charges, with the result that the vast majority of those brought to trial are found guilty.

If we follow this reasoning to its logical conclusion, the importance to the accused of that portion of the trial subsequent to a finding of guilty is obvious. Once his guilt has been established, that phase of the case which follows the findings will in all probability have considerable effect on the type or degree of punishment which the court will assess against him. Despite the finding of guilt, the accused has the right to present to the court evidence of previous good character, and such other evidence as may tend to extenuate the offense or mitigate the punishment. The right of the accused to present his case to the court in the most favorable light, prior to determination of his sentence, is safeguarded by the procedure outlined in sections 164 and 165 of Naval Courts and Boards.

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Section 166, Naval Courts and Boards, relates to another phase of the proceedings subsequent to the findings. This section is titled, "Matter in Aggravation." and provides in part when the judge advocate has knowledge that the offense as actually committed was of a more grave nature than appears merely on the face of the specification it is his duty to offer such testimony as tends to show the aggravating nature of the offense, but this should not relate to a separate and distinct offense. Matter of this type is introduced after the finding."

A review of court-martial orders and recent cases indicates that section 166, Naval Courts and Boards, is seldom employed by judge advocates and recorders of courts martial. Section 620, Naval Courts and Boards, under the chapter, General Court-Martial Procedure, refers to "Matter in aggravation, mitigation, and extenuation," but provides no specific example of what would be considered proper matter in aggravation. In numerous instances where the prosecution has endeavored to present such evidence, the action has been criticized on one of two grounds:

FIRST: The purported matter in aggravation served no purpose and added nothing to the seriousness of the offense. We have an example of this in C. M. O. 92, 1918, 14, where the accused pleaded guilty to the charges and specifications, but the judge advocate called and examined witnesses for the prosecution. The Judge Advocate General made the observation that since nothing which showed the offenses to have been aggravated was brought out by these witnesses, there was no necessity for the introduction of their tes

timony. Similar comment was made in C. M.O.s 35, 1920, 21; and 12, 1934, 7.

SECOND: The purported matter in aggravation actually was evidence of a distinct and separate offense. In C. M. O. 1, 1940, 73, the accused was charged with "fraudulent enlistment," and subsequent to the finding of guilty the judge advocate introduced, as matter in aggravation, a record of previous conviction of the accused for desertion and fraudulent enlistment while serving with the United States Army. The court-martial order points out that the evidence adduced was no more than evidence of separate and distinct offenses, and as such was inadmissible as matter in aggravation. The same error appears in C. M. O. 1, 1942, 149, where, after the accused had been convicted of "sleeping on watch," a witness was called by the prosecution as to matter in aggravation, and testified that he had reprimanded the accused on several previous occasions for either sleeping on watch or not standing an efficient watch. The Judge Advocate General's opinion concluded that since the testimony related to separate and distinct offenses, it was wholly irregular to introduce such evidence in aggravation. See also C. M. O's 2, 1943, 121; and 2, 1943, 177.

Another group of C. M. O.'s relates to cases where circumstances of an aggravating nature were pleaded erroneously in an additional specification. For example, C. M. O. 8, 1936, 7, reports concerning an accused who was charged with "drunkenness" and "conduct to the prejudice of good order and discipline" (Under the influence of intoxicating liquor to such an extent as to cause his arrest by civil authorities). The accused objected to the specification of the latter charge on the ground of duplicity. It was JAG's opinion that if the convening authority wanted to have the arrest by civil authorities considered by the court, he should have alleged such fact in the specification to the first charge as matter in aggravation. Similarly in C. M. O. 9, 1937, 4. This suggested practice of using the specification as a vehicle for bringing aggravating circumstances to the attention of the court is the fair way to do business with the accused. The pleader avoids the objection of duplicity, and yet informs both the court and the accused from the outset as to the full gravity of the offense charged.

The C. M. O.'s indicate a lack of uniformity regarding the question of whether evidence in aggravation should be presented after the findings

pursuant to section 166, Naval Courts and Boards. In one case, reported in C. M. O. 5, 1928, 9, the published comments of the convening authority place an obligation upon the judge advocate to present matter in aggravation. In this case an officer had pleaded guilty to five charges of a serious nature and was sentenced to lose numbers in rank. After criticizing the court for the inadequacy of the sentence, the convening authority further remarked that he "notes with unqualified disapprobation the fact that the judge advocate failed to introduce evidence for the prosecution. The preliminary investigation in this case would indicate that the offenses as actually committed were of a more grave nature than appears merely on the face of the specifications. The convening authority considers that all the circumstances attending the offenses in this case should have been presented to the court."

A group of companion cases in 1946 raised the interesting question of whether the court should be informed of aggravating circumstances following a guilty plea. Ten young enlisted men were involved in numerous thefts of cigarettes and sugar from a supply depot, and disposal thereof in the black market. Each of the 5 separate thefts was the result of a conspiracy among 3 or 4 of the 10 accused. Because the participation of the conspirators in the various offenses was with a different combination of conspirators each time, it was feasible to charge only two of them in joinder. However, after investigation and certain admissions, each of the 10 men elected to plead guilty, and in view of their pleas, all 9 trials were conducted before the same court, without objection.

It was decided that the joinder trial of A and B would be heard first, solely because of the fact that an officer who was to be a witness as to matter in mitigation was waiting to testify before proceeding to another area. After the trial of A and B was completed, the court proceeded with those of the other eight men. During the hearing of matters in mitigation and extenuation most of the eight accused indicated that A and B were the ringleaders of the conspiracies, and that it was from the two of them that the other eight younger men had obtained the idea of how to make some easy money.

At the time the court heard this testimony a relatively light sentence already had been meted out to A and B on the basis of their guilty plea followed by matter in mitigation in their behalf.

Under the circumstances the court apparently considered itself obligated to deal less harshly with the remaining eight accused, and inquired as to why the judge advocate had not made known to the court the aggravating circumstances surrounding the participation of A and B as leaders in the conspiracies. The answer to the court's inquiry was that the information concerning A and B acting as ringleaders was unknown to the prosecution until brought out in the trials. Assuming, however, that the aggravating circumstances relative to A and B were known to the judge advocate prior to their trial, the cases cited above pose the question whether or not he would be obligated to bring this information to the attention of the court in accordance with section 166, Naval Courts and Boards, and C. M. O. 5, 1928, 9 (supra), or would the judge advocate be justified in taking the position that since A and B had admitted the error of their ways and pleaded guilty, the presenting of aggravating circumstances was rendered unnecessary.

Wharton's Criminal Evidence, p. 975, under section 587 titled, Plea of Guilty, states in part, "In addition to a careful investigation into the circumstances surrounding the plea, the court ought always to hear evidence to determine the degree of punishment, and in some jurisdictions such a procedure is properly held to be obligatory."

In 77 A. L. R. at page 1211 we find a statement which appears to give a big boost to the use of section 166, Naval Courts and Boards. The reference states that in the absence of statute a majority of the American cases lay down the principle that, where the court must determine the punishment to be imposed, either on the finding of the jury or on the plea of guilty, it is correct practice to hear evidence in aggravation or mitigation, as the case may be.

The States of Colorado, Idaho, Illinois, Montana, Texas, and Utah each have statutes which provide in substance that after a plea of guilty, if discretion exists as to the extent of the punishment to be assessed, witnesses shall be examined as to the aggravation and mitigation of the offense. In Texas this evidence is presented to a jury impaneled to assess the punishment, whereas in the other aforementioned States the court hears the testimony. The courts of two of these States, Colorado and Texas, have ruled that the statute is mandatory, but in the other four States such