Published monthly by the Judge Advocate General of the Navy in the interest of true justice. The mission of the JAG JOURNAL is to promote legal forehandedness among naval personnel charged with the administration of naval law. The goal to be attained through this unofficial medium of instruction and review for those untrained or trained in law is the clear understanding of the basic laws governing Navy life and of the rights and obligations of naval personnel.

The editorial policy has been established as one of informality, to insure that articles are presented in interesting form. Its pages are citable in Navy judicial proceedings and will be accorded such weight as the respective courts may determine, when unsupported by official reports of cases referred to therein. Court Martial Orders and opinions of the Judge Advocate General remain as the Navy's official sources of precedent, binding upon courts as such.

Views on controversial topics expressed herein by individual authors must be construed as being their own personal views, not necessarily bearing the endorsement or approval of the Navy Department or of the Judge Advocate General.

The printing of this publication has been approved by the Director of the Bureau of the Budget, 13 July 1948.

RADM. G. L. RUSSELL, USN Judge Advocate General of the Navy

CAPT. E. E. WOODS, USN

Assistant Judge Advocate General of the Navy

COMDR. T. F. RYAN, USNR Editor

LCDR. G. H. ROOD, USN Associate Editor

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ATTENTION IS INVITED to an advance change to Naval Courts and Boards, 1937, effective on receipt, which eliminates for candidates for promotion the necessity of completing physical examination prior to taking mental and professional examinations. Section 861 is altered to this effect, sections 891 and 939 are deleted and the requirements of the form letter in section 947 are changed. The candidate now will be given orders to report direct to the President of the supervisory board of professional examiners, instead of a board of medical examiners as in the past. Printed changes for all holders of Naval Courts and Boards now are in the mail.

ADMIRALTY

HE February 1949 issue of the JAG JOURNAL THE discussed the legal aspects in collision litigation of anchoring in an unauthorized area or in a manner so as to obstruct navigation. The point has further implications. A vessel may, in fact, not be held at fault for her choice of anchorage, yet that situation will raise a burden to take averting action. Thus, while the anchorage situation may not be of itself a fault, failure to have exercised the required precautions may result in the vessel being condemned on other grounds. This requirement of further precautions is well illustrated by one of the decisions cited in the February 1949 issue (Erie Railroad Co. v. United States, 64 Fed. Supp. 946). While the anchored vessel there, the George E. Badger, avoided liability because of her place of anchorage, she was nevertheless held at fault for failing to maintain a proper anchor watch and to veer chain. Thus, mariners, in evaluating their problems in connection with a hazardous anchorage, should have fully in mind the added requirements of vigilance which the situation imposes. In the Erie case the court defined the precaution to be taken by an anchored vessel in the following quotation:

"Her position in the river was such as to require her to maintain vigilant anchor watch, ready to give her chain or sheer her clear of an approaching vessel. The Richmond, 63 Fed. 1020, 1022'."

(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, 1948, 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