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although as we shall see, it is contrary to the views of M. Fauchille.

Turning now to authorities in German, one of the earliest treatises, or perhaps I should say pamphlets, upon this subject is entitled "Das Luftschiff in Internen Recht und Völkerrecht" (The Air-Ship in Local Law and International Law) by Dr. F. Meili, a Professor in the University of Zurich and a member of the Institute of International Law, published at Zurich in 1908. He tells us that on July 1, 1908, one of Count Zeppelin's dirigible air-ships appeared in the atmosphere of Zurich and in fact in the immediate neighborhood of the author's house. This interesting stranger "lone wandering but not lost" made an appeal to his juristic conscience so that he straightway undertook to find a place for the air-ship in the law. He thereupon enters upon a discussion of the relation of the air-ship to the state, its position in private law, and even discusses the matter of procedure and the criminal law as applicable to such craft, concluding with a chapter from the standpoint of International Law in which he contends for the position of the freedom of the air, limited by the necessity of protection for the underlying state. As an appendix to this work is printed the project of M. Fauchille, the versatile editor of the Revue Générale de Droit Internationale Publique, for the judicial regulation of air-ships, which was presented by this distinguished publicist to the Institute of International Law, of which he is a member, and will be found in the proceedings of that eminent body in Vol. 19 at page 19. This project is both interesting and ingenious, although it may be considered to some extent in advance of the times, as for example, in Article 18 in which he provides what shall be the nationality of children born on board an air-ship. Dr. Meili is in hearty accord with the conclusion of the Institute of International Law in its session in Ghent in 1906, Vol. 21, pages 327-329, in its first article where it is stated: "The air is free. States have over it in time of peace and in time of war only such rights as are necessary for their protection.

(The later draft by M. Paul Fauchille of an international convention upon the legal regulation of air-ships in sixty-three articles will be found contained in the second volume of the

Revue Juridique Internationale de la Locomotion Aérienne at page 206.)

Professor Zitelmann's article upon "Luftschiffahrtrecht" will be found in the 19th volume of the Zeitschrift für Internationales Privat-und Offentliches Recht at page 458 (1909), and was an address delivered before the international air-ship exposition at Frankfort. This contains one of the most powerful arguments in favor of the view of the absolute sovereignty of the state over the air-space within its frontiers. After reviewing the previous literature on the subject, in which he calls attention among other things, to the novel work of a Dalmatian lawyer, Pappafava, upon the powers of a notary upon the land, upon the water and in the air, published in 1901, Zitelmann points out the distinction between the air and the space which the air occupies and that it is only the latter which we have to consider. This is fundamental, for while a state cannot control the air, it can from below dominate the space in which the air exists. He shows the impossibility of making any horizontal division of the air for purposes of navigation and that the concern of jurisprudence is only with so much of space as is subject to the use of man. He maintains that the air is free only over unoccupied territory and over the open sea. He says:

"It is most to be desired that in its future international dealings the German Empire should place itself with entire decision upon this standpoint which is the only one that permits it to remain master in its own house and to provide for its own safety as it shall think right.”

The argument bases itself upon the property rights of the landowner both above and below the surface. Since the state recognizes the rights of the private owner above the surface it must have complete sovereignty to protect them. He holds that it is impossible to conceive that a battle in the air should be permissible above neutral territory, on account of the dangers to the neutral state. A state has a complete right to exclude aliens. From the principle of full sovereignty over the air he solves the various cases of international private law or conflict of laws which would arise in case of air-ships. For legal purposes he brings the aviator down to the ground. So far as

private law is concerned, his opinion is that established principles can easily be extended to cover any cases likely to arise. He advises hesitation in applying to aerial navigation the principles of the law of the sea rather than those of the ordinary law of the country. He, however, does not allow to the owner of land the right to forbid the passage of air-ships at a reasonable height. Where an aviator is compelled by necessity to make a landing he should bear all the resulting expense, otherwise he thinks an aviator should not be liable for damages except for negligence, with an exception in case where he does an act which he is bound to know is likely to produce injury such as for example emptying ballast. He quotes the proud proverb of Bremen "It is necessary to navigate, it is not necessary to live." He would not hold the aviator liable for injuries done to land for which he is in no wise to be blamed or in case of injuries due to accident, and does not agree to the proposition that the aviator should be liable to the owner of a piece of land upon which he has not alighted because of the damage done by curious crowds in running to his landing place. If a man is to be liable for drawing a crowd, no famous person dare show himself in the street.

Reference should also be made to the article by Dr. Grünwald upon the air space in its legal relation to the parts of the earth underneath, in 24 Archiv. für Offentliches Recht 190 (1909) supporting the doctrine of the sovereignty of the underlying state but excepting the right of innocent passage in favor of air-ships.

The new Swiss Civil Code is the only one which has been promulgated since the discovery of aviation, and it is interesting to note that by Article 667 the property of a landowner above and below the soil is confined to the limits within which he has an interest in its use. This principle already existed in the Civil Code of the Canton of the Grisons, article 185 dating from 1862. It is said that the limitation in the Swiss Code had nothing to do with aerial navigation.

In regard to the French literature upon the subject, which is very copious, let it suffice to cite the elaborate article by M. Paul Fauchille entitled "Le Domaine Aérient et le Régime Juridique des Aérostats" in 8 Rev. Gén. de Droit Int. Pub. 414

(1901). I call your attention to the early date. This treatise might be called the opening gun in this battle of the books. I think it is fair to say that the views of no one else have as yet met with such wide acceptance as those of M. Fauchille, and even where one cannot agree with them, it is impossible not to admire their ingenuity. In 1912 there appeared a short treatise by M. Edouard d' Hooghe, Honorary President of the Comité Juridique international de l' Aviation, entitled "Droit Aérien," which contains after some discussion of the general subject a commentary on the French Decret of November 21, 1911, and gives an account of the Prussion ordinance in relation to aviation, and calls attention to proposed statutes upon the subject in California, Pennsylvania and New York.

At the session of the Institute of International Law at Madrid in April, 1911, there was an interesting discussion upon the law of aviation. (Rev. Gen. Dr. Int. Pub. Vol. 18, p. 628). The time was found too limited to discuss M. Fauchille's project of 63 articles covering the regulation of air-ships in time of peace, in time of war, of captive balloons and of balloons without passengers. Certain principles, however, were discussed and voted upon by the members. With only two dissenting votes the Institute decided that a distinction should be made between public air-ships and private air-ships, and upon a like vote that each air-ship should have a nationality. The Institute also voted that the nationality of the air-ship should be that of the state where it is registered and also that each state should decide for itself upon what conditions it will grant, suspend or withdraw registration. It was also agreed without objection that special indications are necessary by which the nationality of air-ships may be recognized. The Institute voted in favor of the principle of liberty of international aerial navigation, reserving the right of states underneath to take the measures necessary for the proper security of themselves and of the persons and property of their inhabitants.

The matter of citizens of one country registering their air-ships in another, led after considerable discussion to the adoption of a resolution that a state which permits the registry of an air-ship belonging to a citizen of a foreign state ought not to assume to protect the air-ship within the territory of the

state of its owner against the application of laws of such foreign state forbidding its citizens to register their air-ships in other states.

The question of the use of air-ships in war evoked serious differences of opinion, first whether their use should be prohibited altogether, and secondly, if used in war, what limitations, if any, should be placed upon their action. Holland opposed their use in any hostile enterprise; Westlake, Fiore and Albéric Rolin opposed the throwing of projectiles from the air and pointed out the great expense of keeping air fleets in addition to the heavy burdens already borne by European states for armament. Von Bar pointed out the unfairness of allowing air-ships to be fired upon and yet not permitting them to defend themselves in the only way possible.

The final conclusion was that aerial warfare should be permitted, but upon the condition of not creating greater dangers for persons and property not engaged in war than in case of war upon land or the sea. The text of the resolutions adopted will be found in the Annuaire de l'Institut de Droit International, t. XXIV (1911), p. 346. The debate upon the subject is said to have been so warm that the learned members of the Institute actually held night sessions-something hitherto unheard of.

This April session in 1911 was not the first occasion upon which the Institute of International Law voted in favor of the proposition that international aerial navigation is free, subject to the rights of the underlying states of fixing certain limits for its exercise in view of their own security and that of the persons and property of their inhabitants. At its earlier meeting in Ghent in 1906 having before it the question of aviation and of wireless telegraphy, Westlake contended for the position that the state has a right of sovereignty over the space above its soil, subject to a right of innocent passage for balloons or other machines of aviation, or for wireless telegraphy. He claimed that the right of sovereignty should be the rule and the right of passage the exception and suggested the analogy of territorial waters. (21 Annuaire 298). The resolution adopted by the Institute, however, was that the air is free and that states have

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