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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 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 not— it 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

on account of the possible fall of objects from the air-ship or of the ship itself.

A more recent expression of M. Fauchille's views will be found in the Annuaire de l' Institut de Droit International, Vol. 23 for 1910 at page 297 and at the close of his report is given his project of a convention in relation to aerial navigation followed by a shorter project by Von Bar.

Probably the most exhaustive work in English upon the subject is "Air Sovereignty" by Dr. J. F. Lycklama, a translation of a work which appeared first in French in a series of articles in the first volume of the Revue Juridique Internationale de la Locomotion Aérienne, a work which not only gives the author's argument and conclusions which are in favor of the unlimited sovereignty of the state over the air, but also collects the material showing the laws of various foreign states, from which analogies may be drawn.

One of the most complete works upon the general subject of aerial law is that of Professor Enrico Catellani of the University of Padua entitled Il Diritto Aereo, translated into the French by M. Bouteloup under the title Le Droit Aérien, published in Italian in 1911, and in French in 1912. The author has carefully examined the literature of the topic, the material contained in the discussions of the Institute of International Law, and the work of the Comité Juridique International de l'Aviation beginning in 1909 in connection with drafting a Code of the Air, and also the communications from the various governments preliminary to the international conference upon aerial navigation held in Paris, as well as the proceedings of the unofficial congresses held at Verona and elsewhere upon the subject of aerial navigation, so that the book contains an admirable survey of the data extant upon the subject.

Upon the question of sovereignty over the air, Catellani would concede to the underlying state rights of sovereignty but only so far as its interests require, following the analogy of the property owner under the most modern legislation in which his rights overhead are limited to such as he has an interest in exercising. He holds that the state ought to be able to forbid at any height in the space which dominates its territory whatever menaces its security or restraints its sovereignty or com

promises in any manner whatever its use of its territory, but on the other hand, the aerial space ought to be completely free from any dependence upon the subjacent state in that which concerns the use and especially the passage of the air in every case where such use and passage do not have objectionable consequences indicated to the underlying state.

He points out the interesting fact that Selden in his Mare Clausum argues the right of exclusive dominion over the high seas from the right of exclusive dominion over the air, saying that the sea is no more fluid than the air. Catellani shows that in the Roman law the ownership of the soil did not extend to the heavens, such an idea being contrary to the practical spirit of the Roman law, and he regards the air as a thing common to all, of which everyone is entitled to the use. The most modern civil codes refuse to allow the right of ownership to extend beyond the limits within which the owner of the soil has a real interest in its use and such is also the tendency of the decisions of the courts. The same analogy should be followed as to the rights of sovereignty of the underlying state. So far as the state has no interest to preserve in the protection of its territorial rights, it should consider the aerial space as non-territorial. He suggests that in every part of the overlying space the state has full right of sovereignty for its protection and for the preservation of its interests, but at the same time that in all aerial space all men are entitled to the enjoyment of a common right of navigation. These two rights coexist throughout, the right of the state indeed only in the superjacent air, but the common right of humanity in the atmosphere everywhere. He emphasizes the necessity of niternational legislation along the lines of the proposed Code of the Air, embodied in statutes which are not framed simply from the local point of view, but from the standpoint of international benefit.

Upon the question of the liability of the aviator in case of accident free from negligence he calls attention to the conclusion of the Congress of Verona, that responsibility ought to be limited to cases of negligence, as a more stringent rule would prove a handicap to the development of aviation. The interesting suggestion is made that for the regulation of aerial navigation, a body of international police will ultimately become necessary.

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