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(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 no rights over it in time of peace or in time of war except such as are necessary for their protection. (21 Annuaire 327.)
In spite of Westlake's failure to carry the Institute with him, the view which he advocated is so admirable in its analogy to existing law, so suitable for the necessary protection of states, yet without giving up the fundamental right of peaceful navigation of the air—to surrender which might almost be called treason to humanity—his views have received the approval of numerous subsequent authors, and it is not impossible that they may ultimately prevail.
When the legislator comes to enact his Code of the Air, he will find much of his work already done for him in the draft of an international code prepared under the auspices of the International Juridical Committee on Aviation which has already held two international congresses for this purpose, the earlier at Paris in 1911 and the later at Geneva in 1912. This Committee has published the Revue Juridique Internationale de la Locomotion Aérienne, which has reached its third volume and contains in addition to the reports of the national subcommittees and the discussions in the preparation of the draft, current news of the jurisprudence of aviation and articles dealing with the legal questions to which the conquest of the air has given rise. The proceedings of the two congresses are also published separately. The organization of this committee was made under the auspices of the Aero Clubs of the different countries and the work which has been done is not only interesting, but will prove of undoubted value in the legislation which the progress of aerial navigation will inevitably require. Attention should also be called to the international congress upon the same subject at Verona in 1910, attended principally by Italian jurists and in which the congress resolved in favor of the doctrine of sovereignty over the air by the underlying states, tempered by the doctrines of the right of innocent passage of air-ships. It is not necessary to commit the states to any particular theory of sovereignty over the air in order for them to accomplish wholesome and useful laws, whether enacted by the several legislatures or embodied in international treaties.
In the early discussions of the draft of a Code of the Air, the view suggested by a majority of the German sub-committee of the Comité Juridique International de l'Aviation was that the space above the territory of the state, including its territorial waters, should be regarded as a part of the territory of the state, but that no state should in time of peace forbid the innocent passage of foreign air-ships, and that acts done upon a foreign air-ship while in the air which do not affect the interests of the underlying state should be subject to the legal jurisdiction of the state to which the air-ship belongs. This view was rejected by the Comité as a whole in favor of the view that the navigation of the air is free and that underlying states have only the rights necessary to protect their own security and the exercise of private rights within their territory, and that of their territorial waters.
The position that the state is sovereign of the overlying space advanced by the German committee was supported by the Austrian and Danish members, while the French project in favor of the freedom of the air was supported by the representatives of Belgium, Italy, Monaco, Turkey and the United States. The final decision reached was in favor of the position that aerial navigation is free and that states do not have over the space above their territory including that over their territorial waters, other rights than those necessary to guarantee the national security and the exercise of private rights.
In the discussion of the German project, M. Paul Fauchille (1 Revue Jurisdique Internationale de la Locomotion Aérienne, 135) said that if it was necessary to decide upon the legal nature of the aerial space, one would have to choose the freedom of the air with a reservation of the rights of the underlying states for their protection and not the sovereignty of the underlying states moderated by the right of innocent passage of airships. The first theory he said is the only one which truly assures aerial navigation without injuring on this account the legitimate interests of the states. With the second, a state would be able if it chose to close its atmosphere to the navigation of air-ships; the right of innocent passage which in fact is acknowledged to them, accords very ill with the idea of sovereignty. In truth, either the state is sovereign or it is notit is not half sovereign. Besides what are we to understand by innocent passage? Nothing is more vague. This state would
consider as innocent a passage which another would judge to be dangerous. In addition, the air by its very nature does not appear to be susceptible to sovereignty. Finally, with the German theory which admits the sovereignty of the state over air-space as a necessary consequence of the sovereignty of the state over its territory, the result would be in time of war an inadmissible conclusion; since the air constitutes a necessary dependence of the land territory, the conclusion would follow that the air of a neutral state would be closed, not only to the acts of hostility of belligerent air-ships, but even to their simple passage; the result would be that the states which have no communication with each other except by way of the air of a neutral state would not be able to reach each others atmospheres or to return to their own, in order to fight. Aerial war would be impossible for them and this would result in putting certain states at a disadvantage as compared with others, which is not admissible.
M. Fauchille seems to have abandoned entirely his earlier idea of fixing a zone in the air corresponding to the three mile limit in territorial waters beyond which navigation should be absolutely free. A fundamental point in his theory is that the air is incapable of appropriation in any real and permanent fashion. An aviator can no more be at rest in the air that can a bicyclist moving upon a highway. To remain in one place it is necessary to dismount, except in case of a captive balloon. He regards the air like the high seas as a subject of common right in which many states may exercise their rights at the same time. The only limitation to the principle of freedom he draws from the right of each state to protect itself. His first report upon the subject will be found in 19 Annuaire de l' Institute de Droit International at page 19 in which the various articles which he propounds are discussed with some elaboration. In the same volume at page 86 will be found the report of M. Nys upon the same subject and in favor of an even more liberal freedom of the air.
The essential difference between the high seas and the upper air was early pointed out by Westlake to be that the further off a vessel goes from the land, the less danger it becomes to the territory of the state, while in case of an air-ship, the higher it goes the greater the danger to the underlying state