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During the great World War in the code of maritime warfare promulgated by the United States Navy Department, the second and third articles of the Declaration of Paris were literally included, while the fourth article was in principle also incorporated.
INTERNATIONAL AERIAL NAVIGATION AND THE
By ARTHUR K. KUHN
Counsel to the Peace Conference Committee of the League to
Aërial navigation, owing to the unusual impetus given to it by the Great War, now promises to result in one of the most profound influences affecting the conditions of modern civilization. It is difficult to realize that only twenty years have elapsed since the program of the First Hague Conference proposed “to prohibit the throwing of projectiles or explosives of any kind from balloons, or by any similar means”; and that one of the express causes inducing the nations of the world to agree to the proposal was the undeveloped character of the art of aviation. Although the treaty was short-lived and expired in 1905, the art had so greatly advanced that a complete change of the attitude of many governments had taken place and the renewal of the treaty was out of the question.
The opening of the war inaugurated a feverish competition to perfect every possible type of aircraft for use in attack as well as for reconnaissance. The stern demands of military tactics introduced an entirely new phase in the development of aërial navigation.”
1 Report of Captain Crozier to the United States Commission of the First Hague Conference. Holls, The Peace Conference at the Hague, p. 95. The reasoning of the subcommittee correctly anticipated by almost two decades some of the occurrences of the war. Captain Crozier reported that the action taken for humanitarian reasons was founded upon the opinion that balloons and other aircraft, as they then existed, constituted such inaccurate means of injury that their use would be dangerous to noncombatants; that “the persons or objects injured by throwing explosives may be entirely disconnected from the conflict, and such that their injury or destruction would be of no practical advantage to the party making use of the machines.”
2 “Ten times as many years would not have produced the same advance if the years had been devoted to peaceful pursuits and commercial uses of airplanes had been the only incentive to inventors and producers.” Secretary of War Baker in the Introduction to Captain Arthur Sweetser's The American Air Service. So long as war is possible, aircraft will continue to be developed as instruments of war, especially in connection with radiotelegraphy, radiotelephony, photography and other correlated scientific means. Fortunately the arts developed in war are quickly adapted and applied to the demands of peace; and of this truth, aërial navigation furnishes an excellent example. The year following the armistice witnessed many remarkable achievements in air navigation, demonstrating its future commercial value as a new means of intercommunication and transportation. The crossing of the Atlantic Ocean from the mainland of the United States to England, via the Azores and the European Continent, was closely followed by a continuous flight from Newfoundland to Ireland in about fifteen hours. The distance between New York and San Francisco and return was traversed in slightly more than forty-eight hours. The use of aircraft for the regular transportation of mails and passengers increases day by day both here and abroad. An art thus expanding by leaps and bounds requires a wise system of legal regulation and control, both in its own interest and for the safety of the community. Aërial navigation, like the navigation of the seas, is international in scope, and its adequate regulation by law presupposes the coöperation of nations through international conventions. This has long been recognized both by scientific experts and by jurists. It was also accepted as a basic principle by the official International Conference upon Aërial Navigation held in Paris upon the call of the French Government in May, June and November, 1910,4 and also by the unofficial Conference for the Regulation of Aërial Locomotion held at Verona in June, 1910.5
If the war had not intervened, the French Government would have convened another diplomatic conference to elaborate a code of international air law, or at least to establish a modus vivendi for international flying. The Conference of 1910 adjourned without finally approving a draft, though several drafts by Fauchille, Bar and others were discussed and referred for further deliberation. When the Peace Conference convened, in January, 1919, it appointed, among its many other subcommittees, a Commission on International Air Navigation upon which representation was given to each of the five Great Powers, together with Belgium, Brazil, Cuba, Greece, Portugal, Roumania and Serbia.
3 Pesce in Journal de droit international privé, 1911, p. 115; Catellani, Le drott aérien, pp. 33-44 (translated by Bouteloup from the Italian).
4 Journal de droit international privé, 1911, p. 986. 5 De Valles in Revue juridique internationale de la locomotion aërienne, 1910,
THE CONVENTION RESTRICTED TO TIME OF PEACE
It is worthy of emphasis that diplomatic congresses held in times of peace often deal with the conduct of warfare, while conferences held at the close of a great war usually do not. The Congress of Vienna in 1815 and the Berlin Congress of 1878 dealt principally with political and territorial readjustments, while the Brussels Conference of 1874 and the Hague Conferences of 1899 and 1907 attempted to regulate the conduct of war. None of the many activities of the Peace Conference of 1919 was directed toward the regulation of warfare, or even of neutral rights in time of war. Perhaps three main causes may be assigned. First, because the gross violations of the laws of war by the Central Powers undermined confidence in the old system by which the nations consciously endeavored through selfdenying ordinances to make the conduct of war more humane. Second, because the tremendous task of making the necessary territorial, economic and political readjustments absorbed the attention of the Conference. Third, because the Conference endeavored to establish international relations upon a new basis, with the object of eliminating, as far as possible, the causes of war.
The Commission on Air Navigation was one of a number of commissions created under the authority of the Peace Conference having nothing whatever to do with the adjustments of the war itself. Its labors, so far as they were connected with the work of the Peace Conference, consisted of the regulation of the new means of intercourse between nations in such a manner as to promote friendly relations and to avoid friction. The Convention relating to International Air Navigation is reported to have been signed on October 13, 1919, by all the Allied and Associated Powers, excepting Japan and the United States.? The convention is restricted wholly to peace times and does not affect the freedom of action of the contracting states in time of war, either as belligerents or as neutrals.8
6 U. S. Senate Document No. 91, 66th Congress, 1st Session (French and English texts).
7 See the London Times, October 16, 1919. 8 Convention, Art. 39.
SOVEREIGNTY IN THE AIRSPACE
The convention recognizes that every state has complete and exclusive sovereignty in the airspace above its territory and territorial waters. But each state undertakes in time of peace to accord freedom of innocent passage to foreign aircraft without distinction as to nationality, provided the conditions of the convention are observed.10 The convention thus sanctions the principle championed by Westlake at the 1906 session of the Institute, although at that time he could muster only three votes in support of his proposition. A large majority of the Institute were then in favor of a general declaration for the freedom of the airspace.11 The attitude of English and American jurists and the practical developments of the war have now finally solved this quæstio famosissima in a manner which will probably be satisfactory to all. Any nation has the right to map out areas prohibited for military reasons or for public safety, but notice of such areas must be given to the central bureau and published. The fact that prohibited areas must apply alike to domestic as well as to foreign aircraft will serve as a counterbalance to any extreme view of military needs. The right of innocent passage is therefore practically assured.“
NATIONALITY OF AIRCRAFT The convention determines the nationality of aircraft according to rules similar to those established for seagoing vessels. The aircraft possesses the nationality of the state on the registry of which it is entered. The owner must be a national; if the owner is a corporation, the president and two-thirds of the board of directors must be nationals.13 It therefore follows that aircraft cannot be validly registered in more than one country at the same time.
9 Convention, Art. 1.
12 The legal status thus created may be compared to the right of vessels of one state freely to navigate an international river flowing from or through its own territory into a foreign state. Jefferson, while Secretary of State, relied upon this right in his negotiations with France, basing it upon “the law of nature and nations.” Moore, Digest of International Law, Vol. 1, p. 624. The present writer suggested it as an analogy for international rights in the airspace, as early as 1908. Proceedings, American Political Science Association, 1908, p. 87; this JOURNÁL, 1910, p. 114, “The Beginnings of an Aërial Law.”
13 Convention, Arts. 6-7. This was not the rule in the draft proposed by Paul