SMU Law Review Volume 7 | Issue 2 Article 7 1953 Possible Impact of the Tidelands Decisions on Airspace Sovereignty Armine C. Ernst Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Armine C. Ernst, Possible Impact of the Tidelands Decisions on Airspace Sovereignty, 7 Sw L.J. 280 (1953) https://scholar.smu.edu/smulr/vol7/iss2/7 This Case Note is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. SOUTHWESTERN LAW JOURNAL [Vol. 7 NOTES AND COMMENTS POSSIBLE IMPACT OF THE TIDELANDS DECISIONS ON AIRSPACE SOVEREIGNTY SIDE from the immediate importance of the points decided in Ain the Tidelands cases,' the holdings have raised significant questions in the far reaches of sovereignty. Other than special consideration of Texas' claim that a distinguishing pre-admission history had given her ownership of the contested submerged lands, the crucial question decided by the Supreme Court of the United States in all the Tidelands cases was that the States were not the owners of the marginal belts along their respective coasts or the underlying lands and that the Federal Government, rather than the States, had paramount rights in and power over that belt, which gave also full dominion over the resources of the soil under that water area. While Federal control and power have been so rapidly extended in recent years as to make a new assertion there- of not startling, the holding that the thirteen original colonies did not acquire ownership of the three-mile marginal ocean belt along their coasts or the lands underlying that belt, and that the first claim to the marginal sea was asserted by the National Gov- ernment and that protection and control of it are a function of national external sovereignty,' indicates the urgent need of re- examining some presently assumed areas of sovereignty. In no field is this more important than in aviation law- in the con- templation of airspace sovereignty. The question arises whether IU. S. v. California, 332 U. S. 19 (1947) ; U. S. v. Louisiana, 339 U. S. 699 (1950) ; U. S. v. Texas, 339 U. S. 707 (1950). "While these lands are often popularly known as 'tidelands,' literally the tidelands are those lands regularly covered and uncovered by the ebb and flow of the tide, and the United States made no claim to them. The sub- merged lands, the subject of litigation, lie seaward of the tidelands." Moore, Expropria- tion of the Texas "Tidelands" by Judicial Fiat, 3 Baylor L. Rev. 130, n. 3 (1951). 2 U. S. v. California, supra note 1, at 31-34. 1953] NOTES AND COMMENTS the Federal Government or the States have sovereign rights in the airspace above. In international law there is no question as to sovereign rights in the airspace. Every nation is recognized as having complete and exclusive sovereignty over the airspace above its territory and territorial waters. Conversely, areas not part of the territory of any nation, such as the high seas, are open to the use of all. The United States adheres to this principle; it has been asserted by both treaty and legislation.8 Control of aviation in the United States, however, presents a problem not only on an international scale - external sovereignty - but involves the question of power as between the various States of the Union and the Federal Gov- ernment - internal sovereignty. Recognition of the airspace of the United States as part of the domain of the United States as against all foreign nations does not necessarily resolve the ques- tion as to whether the airspace above any one of the United States is also a part of the domain of that State; the States may never. theless have sovereign rights in this airspace for internal regula- tory and police powers. Sovereignty has been defined as the "supreme, absolute, and uncontrollable power by which any independent state is gov- erned.. ." Such governmental powers are, under the United States Constitution, distributed between the Federal and State Governments. That document is usually construed as retaining sovereign power of self-government in the States, or in the people, except for specified grants of power, expressly or impliedly, dele. 3 The Convention for the Regulation of Aerial Navigation, Paris,1919 (U. S. Dept. of State, Pub. No. 2143, 1944) included this basic doctrine. Although the United States was signatory to this Convention, it did not later ratify it. But the United States has adopted the same principle and has asserted its sovereignty over its airspace in the passage of the Air Commerce Act of 1926, 44 STAT. 568, 49 U. S. C. 1946 ed. §§ 171. 184, and of the Civil Aeronautics Act of 1938, 52 STAT. 977, 49 U. S. C. 1946 ed. §§ 401. 408, and by the signature and ratification of the Pan American Convention on Commer. cial Aviation, Havana, 1928, 4 TRF.ATIES, CONVENTIONS, INTERNATIONAL ACTS, PROTO- COLS, AND AGREEMENTS BETWEEN THE U. S. AND OTHER POWERS (U. S. Govt. Printing Office, 1938) 4729 and of the Convention on InternationalCivil Aviation, Chicago, 1944 (U. S. Dept. of State Conf. Series 64, Article 1, Appendix II). 4 BLACK'S L. DicT. (4th ed. 1951) 1568. SOUTHWESTERN LAW JOURNAL [Vol. 7 gated to the Federal Government.' There was thus established a dual form of sovereignty with the States considered to be sovereign or quasi-sovereign in character, retaining those powers not sur- rendered to the Federal Government by the Constitution, and the Federal Government sovereign in those rights which it holds under the Constitution.' If the airspace is Federal domain, the Federal Government has exclusive legislative powers therein, but if the airspace is part of a State's domain, then the sovereignty of the State and of the Federal Government would follow the ordinary constitutional pattern regarding State and Federal powers. The question of sovereignty of airspace, therefore, involves momentous problems in the control of aviation - the economic regulation of air commerce and jurisdiction of crimes committed and tortious acts occurring in the air.' Until comparatively recently it was generally assumed that the airspace was part of the State below. There appeared to be a practical division of airspace sovereignty between the States and the Federal Government by regulation according to the boundaries of the Constitution. Federal control was effected by reliance prin- cipally upon the constitutional provision of power to regulate commerce, although other constitutional powers, such as the postal power, the treaty-making power, the war power, and the maritime power have also been used. State control rested on the States' reserved police powers. This idea is reflected in declara- tions of legislation, in treaties, and in judicial decisions. The Air Commerce Act of 19268 and the report of the Inter- 5 "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U. S. CONST. AMEND. X. 6 See THOMAS, ECONoMIc REULATION OF SCHEDULED Am TRANSPORT (1951) Ch. 2, § 2, pp. 24 ff., for a discussion of "Airspace Sovereignty and the Dual Nature of the Government." 7 Cooper, Crimes Aboard American Aircraft: Under What Jurisdiction Are They Punishable? 37 A. B. A. J. 257 (1951). This article analyzes the present undefined juris- diction regarding crimes committed on board United States aircraft flying over foreign territory, the high seas, the marginal seas, and the states of the Union. 8 Cited supra note 3. 1953] NOTES AND COMMENTS state and Foreign Commerce Committee of the House of Repre- sentatives9 relative thereto, contain interesting statements. Section 4 of the Act 0 authorized the President to provide for airspace reservations by executive order, and, in addition, it authorized the States to establish necessary airspace reservations if they were "not in conflict either with the airspace reservations established by the President under this section or with any civil or military airway designated under provisions of... [the Act]." In reference to this section, the House Committee observed: ... [T]he power of the President to establish Federal government airspace reservations in the States in no wise diminishes the power of the States to establish airspace reservations for such other purposes as they deem advisable so long as such reservations are within the air- space over which the States have acquired or retained sovereignty under the Constitution and so long as the establishment of the reserva- tions is an exercise of a Constitutional power reserved to the States and does not interfere with the Federal airspace reservations or with the Federal airways.", Section 6 of the Act' 2 declared: ... [T]he 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. In its comments on this section, the House Committee said: ... The Section in no wise affects the apportionment of sovereignty as between the several States and the United States, but only as between the United States and the rest of the world. Insofar as the States had sovereignty in the airspace at the time of the adoption of the Constitu- tion, and such sovereignty was not by that instrument delegated to the Federal government, and insofar as the States may have subsequently acquired sovereignty in airspace in accordance with the Constitution, such sovereignty remains unchanged.'3 " This report is contained in an article by Lee, The Air Domain of the United States in CIVIL AERONAUTICS LEGISLATIVE HISTORY OF THE AIR COMMERCE ACT OF 1926 CORRECTED TO AUGUST 1, 1928 (U.