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also been exhibited by the Russians and complaints have been made of their firing upon German air-ships which had not crossed the Russian border. The German military air fleet is believed to have a greater predominance over the fighting air craft of other countries than the English navy has over their navies, and the prospect of foreign vessels exploring the atmosphere of England and testing out by experiment the possibility to carry on serious operations there, is enough to disturb the equanimity of an Englishman and also to point out the necessity of allowing each state for the purpose of its defense, all necessary control of the atmosphere overhead both in peace and in war. It would be preposterous to suppose that England would be bound by the rules of International Law to submit to unregulated cruises of air-ships above its territory, something likely to result in enormous mischief to the country in times of war since the long journeys already made by the Zeppelin ships demonstrate only too clearly their ability to become formidable engines of war.
On the other hand, in dealing with the question of the actual power of the state over the air it should be borne in mind that a height is soon reached at which the air becomes no longer suitable for respiration or for the maneuvers of the flying craft and that with the present progress of artillery intended for use in firing upon air-ships, it is practically possible for a state to exercise authority over the atmosphere above its soil so far as it is available for aviation. It is conceded by all that the right of aerial navigation is unlimited so far as the air over the high seas is concerned and the same principal should undoubtedly be applicable to air above maritime highways, which are open to the ships of all nations. To compel air vessels, however, to follow the devious paths of the seas would be to lose one of the principal advantages of the use of the air, which lends itself to a much greater extent than the sea to journeys upon a direct lines. It substitutes an air line for a water route between two points. The air over territorial waters might perhaps be conceded to be subject to the sovereignty of the state to the same extent as the territorial waters themselves. In such air, as in the territorial waters, there would exist the right of innocent free passage for the ships of all nations, with the exception of vessels of war when the state chooses to exclude them. But it is a necessary consequence of the doctrine that the state has absolute control of the air within its borders for every purpose, that it may refuse to permit the passage of flying craft even for the most innocent purpose and it is conceivable that in this manner such a country as for example Switzerland or Servia, could be deprived absolutely of access through the air. This is following the swing of the pendulum too far, and it would be unfortunate to seek repose in such a conclusion.
The maxim that “he who owns the earth owns it to the Heavens” is no more worthy of respect than the other maxim that the “air is free to all” and the expression “free as the air” certainly would have very little significance if persons were not allowed to go about in it. It seems impossible to divide the air into zones below a certain height to belong to the underlying state and above a certain height to be free for purposes of innocent navigation, and while the safety of the state would receive every possible protection against spying, smuggling, violating of quarantine, the entry of criminals, and the like, since the normal state of nations is peace and not war, it ought not to be possible for a state to put an end absolutely to all kinds of aerial navigation over its frontiers. The right of the state to protect itself ought to be limited by the reasonable necessity of protection and a general interdict on the passage of flying machines over its soil ought not to meet with the approval of international jurists anywhere.
When some future William Tell shall address the storms of his native land: “Blow! Ye are the winds of liberty." I hope no jurist will be found to answer, “On the contrary, William, these are the winds of Switzerland, and any foreigner riding on the gale will be sentenced to six months imprisonment at hard labor.”
The air-ship offers a new facility not only for the evasion of the customs and quarantine laws of the states, but for the introduction of undesired aliens. It is related that when the first aviator safely alighted upon the English shore, he was shortly waited upon by the Customs Officers of the realm inquiring if he had anything to declare, and while this incident created some humor at the time, it will obviously become necessary when
air fleets are common. Indeed, according to the newspapers, at Luneville last April, France collected the sum of $2,000 customs charges from a German military air-ship which descended in its territory. This is of course one way of conveying a delicate intimation that visitors are not expected. If a sea-going vessel by stress of weather or losing its way in a fog should come into a French harbor or upon the French coast, the skipper would certainly not expect to pay tariff charges for having imported the vessel. It seems rather a case of imposing a fine.
If we accept the theory of the absolute sovereignty of the state over the air, grave consequences are likely to follow to neutral states in case of war, for it will probably then be their duty to prevent the passage of air-ships of war belonging to bellig. erent nations and to prevent the use of the overlying atmosphere for the aid or benefit of either of the warring states. One can readily see that this would be a matter of the greatest difficulty. An unpleasant consequence in times of peace would be that states would be able to grant monopolies of aerial navigation, which might revive unpleasant memories of the commercial claims of certain maritime Powers over the seas three centuries ago.
The conference of the Powers upon the subject of aerial navigation in April, 1910, at Paris, which adjourned without result after several months' deliberation, is said by Sir Erle Richards to have shown such a radical and irreconcilable difference of opinion upon the question of the sovereignty of the state over the air as to make progress impossible.
While such reasoning as his might be very acceptable to island states like Great Britain, it must be obvious that to a country like, for example, Bolivia, surrounded entirely by other states and which could by the application of this doctrine be cut off from any through lines of aerial traffic altogether, it would be far from acceptable. If, as seems not unlikely, air-ships should ever cross the ocean, such a doctrine might prevent an air-ship from passing over the British Isles at all and make an air line as devious as a route by sea. The great objection to extending the right of private ownership into the air is that as a practical matter the landowner has no dominion over the higher levels and never can have. The essential idea of property
is dominion and human rights should not even in theory extend beyond human power. In the same way, the dominion of the state can never actually be exercised over the entire air lying above it, and it seems a vain project for a state of any size to interdict altogether the passage of air-ships. After the full right of a state to protect itself and its subjects has been conceded, there remains something to be said for the principle of discarding all unnecessary limitations of human freedom and allowing the common enjoyment and use of the air. The great interests of mankind lie in the direction of peace, not war. After the necessary safeguards have been taken for the protection of states, we should look rather to the enlargement of human freedom and human intercourse, and these matters are too precious to be left to the absolute discretion of each particular state. It can hardly be imagined that a state could seriously undertake to police its entire aerial frontier so as to prevent the passage of air vessels. Not the frontiers alone, but the entire atmosphere of the country, would have to be patrolled. It would be just as easy to maintain a blockade of an entire nation in three dimensions, and it seems of little use to concede to a nation in theory a dominion which can never be possible in fact. The difficulty of the situation may perhaps be illustrated by trying with a rifle to shoot a bird upon the fly at night.
We can not help believing that the military point of view is the prevailing one with the German as well as the English jurists who have accepted the doctrine of absolute sovereignty, and the result reached is certainly one which however desirable in times of war, must bid us pause in times of peace. Both the doctrine of the absolute sovereignty of the air and the doctrine of the absolute freedom of the air lead to undesirable, not to say impossible conclusions, and if a middle ground can be found which will enable states to take all measures necessary for their own security and yet subject to this restriction permit the full advantage of the new discovery in the way of extending human intercourse, and increasing the opportunities of travel and trade, it is very desirable. On one side we have the intense nationality and martial spirit of the single state, and on the other the spirit which would break down all artificial and unnecessary boundaries between nations and extend the citizenship of the world, the spirit which cherishing no vast dreams of exclusive empire, looks forward rather
Till the war drum throbs no longer and the
battle flags are furled
of the world.
The theory of sovereignty over the air must, it seems to me, rest upon the facts first that by means of suitable cannon the underlying state is able by physical force to control to a great extent the use of the air, just as in case of territorial waters, and secondly that the danger of injury from foreign vessels moving, or for example, engaging in combat, in the air, is fully as great as that in the case of territorial waters. So long as the right of innocent passage is preserved to private air-ships of other nations under reasonable regulations for the protection of the underlying state, they have no real grievance, but if a nation should lie across an international air route and absolutely forbid the right of innocent passage, the grievance might become in future just as great as if such a state should undertake to close that portion of its territorial waters which constitutes a marine highway.
It is difficult to justify the right of the underlying state to police the air except upon the theory that it has jurisdiction over it. This is not inconsistent with the view of a servitude of innocent passage in the air of the same kind as in territorial waters. This servitude is to be supported upon the theory that by common usage and for reasons of public policy innocent passage is permitted. From the time of the invention of the balloon, such vessels have passed over the territory of various states without objection and it would be surprising to find that the matter gave rise to any serious questions before balloons became dirigible and popular fears were excited by possible dangers arising from their use for purposes of espionage or in war. It is true that for the purpose of observation of fortifications and photographing them the air-ship offers extraordinary opportunities and it may also be used for the discovery of submarine mines laid for coast defense and not visible from the surface of