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adopted. While it was generally supported by those supposed to be especially the friends of peace, it may well be doubted whether peace is promoted by making war less horrible. Peace is to be striven for when consistent with honor, but when war comes the (leadlier it is, the shorter it will be.
There are two lines from Locksley Hall, often quoted by those who have forgotten the thought that leads up to them, in which Tennyson's clear spirit of divination foretells horrors of the air that would make for a universal brotherhood of nations. Our days seem on the verge of giving reality to what, when he published it in 1842, seemed a visionary and fantastic forecast. Let me close by giving the whole passage: Men, my brothers, men the workers, ever reaping something new,
That which they have done but earnest of the things that they shall do;
Saw the vision of the world, and all the wonder that would be:
Pilots of the purple twilight, dropping down with costly bales:
From the nations airy navies, grappling in the central blue:
With the standards of the peoples plunging thro' the thunder-storm:
SIMEON E. BALDWIN.
17 Scott, The Hague Peace Conferences, Vol. I, pp. 652, 653;Vol. II, p. 527, n.
THE BEGINNINGS OF AN AËRIAL LAW
During the year which has elapsed since the writer first devoted attention to some of the legal aspects of aërial navigation, very material progress has been made in the art itself. Longer and more regularly controlled flights have been recorded by both the dirigible balloon and the aëroplane type of aircraft, between stated localities on land, over territorial waters and even over lanes of commercial importance upon the high seas. A great number and variety of aircraft are being built for state as well as private uses in large establishments erected in many countries for that particular purpose. The field of experiment and demonstration has constantly broadened. Great nations have established a special aëronautic service for use in conjunction with both the army and the navy. So great is the importance ascribed to the function of aircraft in the next great war that much attention is already directed toward the construction of special means for effectual defense. Indeed, an entirely new type.of ordnance has resulted, having, as we shall see, a notable influence upon some questions of international law.
We have sought thus to define the conditions brought about by the scientific advance of the art during the period mentioned, because it is better to confine discussion of the legal problems to facts actually accomplished, or reasonably certain of accomplishment, rather than to deal with conditions vaguely conceived as the result of speculation or prophecy.
We recognize that not all scientists are convinced that the possibilities of aërial navigation are such as to promise a complete revolution in the means of transportation and communication, as was once effected by the steamboat and the railroad. The late Professor
1 Aërial Navigation in its Relation to International Law. A paper read by the writer before the American Political Science Association at its session upon International Law, at Richmond, Virginia, December 31, 1908. Proceedings of the Association, 1908, p. 83.
Simon Newcomb, an eminent authority, though admitting the actual progress in air navigation, especially on the part of the dirigible balloon, maintained shortly before his demise “ that the prospect of commercial success is still far in the future.” 2 Basing his deductions upon the known laws of nature, he doubted whether the time would ever arise when passengers could be conducted through the air “in safety and comfort upon a machine that can be available at will;" ? and insisted that at all events, between that time and the present, there must intervene“ an epoch-making invention.”
But though the degree of its usefulness may still be in doubt, all must admit that a new medium of internal as well as international intercourse and traffic has entered the life of man. Assiming but little advance over the present state of the art, air traffic in some of the forms already known to us will not be merely occasional, but frequent. As with all other advances in material science of a worldwide and permanent character, new relationships between states and individuals are imminent and to adjust and control them in an orderly manner is the task of government through law. in most fully civilized nations,” said the late Mr. James C. Carter, “is in a condition of incessant change, which means that customs are subject to incessant change and that the law resting upon custom must change in accordance with it. New arts, new industries, new discoveries are continually arising, involving changes in populations, employments and all other incidents of life.” 3
Recognizing the new conditions introduced by the latest accomplishment of science, especially in respect of intercourse between nations, the French Cabinet of Ministers resolved, on December 15, 1908, to invite the governments of the world to a conference to meet at Paris, to be devoted to the legal problems of aërial navigation. No date for the same was set and in fact nothing of a more definite nature has come to the knowledge of the writer. When the time is ripe for such a conference, it will undoubtedly be held. But even a conference composed of the ablest jurists can not readily
2 “ The Prospect of Aërial Navigation," in North American Review, 1908, p. 337.
3 James C. Carter, Law, its Origin, Growth and Function, (1907) p. 257.
produce results of value without long advance preparation, reflection, and discussion upon the practical problems involved.
It may not be generally known that the subject has received detailed attention from European jurists of distinction for nearly a decade past. As early as 1900, at an annual conference of the Institute of International Law held at Neuchâtel, Paul Fauchille, well known as the editor of the Revue générale de droit international publie, proposed as a subject to constitute part of the order of the day for the next session: “ Le régime juridique des aérostats. This was accepted and, accordingly, at the following session, Fauchille presented to the Institute a detailed study of the subject, supplemented by a proposed legislative draft" consisting of thirty-two paragraphs. Though the result of painstaking labor, it abounds in what would seem to be unnecessary detail and antedates practical conditions,
To Fauchille is probably due the honor of being the pioneer in this field of legal investigation. The subject has since received the more mature consideration which might be expected from longer familiarity with its practical problems. Such well-known jurists as Gareis, Grünwald, Hilty, Meili, Meurer, and Wys have devoted special attention to it and have developed the beginnings of a new field of jurisprudence.
If we except the limited number of problems involved in the discussions of the Hague Peace Conferences in respect to land warfare, there has been little attention devoted to the subject in this country. This is partly for the reason that the art has been practiced for the most part on European soil, even by American aëronauts, and also because the wide expanse of our home territory and its isolation longitudinally by two great oceans have postponed many of the international problems already become practical in Europe. But in view of the present nervous anxiety to advance the art on home soil and the unusual popular interest which air navigation in all its phases has aroused, at least an outline discussion of its legal aspects is timely.
4 Annuaire of the Institute, 1900, p. 262. 5 Annuaire, 1902, pp. 25–86.
We propose to discuss the subject under the following heads: 1. International Law, (A) In time of peace, (B) In time of war; 2. Municipal Law, (A) Private law, (B) Criminal law.
1. INTERNATIONAL LAW
(A) In Time of Peace. Problems of an international character in respect of material portions of the universe begin with the period of occupancy. Barring the fancied flights of Icarus (which indeed left no impress upon the jus gentium of the ancients !) the air did not appear as a medium of travel until some three centuries ago. From that time to the present the means were so primitive and the accomplishments so insignificant that no questions arose except such as were quite independent of national rights in the airspace. The problem of the nature and extent of sovereignty in the airspace has now, for the first time, become practical, and it is therefore unincumbered with precedent.
It is not surprising that with the first enthusiasm over the arrival of a new art, the tendency should be in the direction of extending to it the greatest freedom and the most effective encouragement. Accordingly, as a result of the discussions of Fauchille and Nys, coupled with what was conceived to be the requirements of the art of wireless telegraphy, the Institute, at its Ghent session of 1906, adopted the following general principle:
The air is free. States have only such rights over it in time of peace and in time of war as are necessary for their conservation.
Where precedent fails, analogy gives the clue and accordingly the great fluid of atmosphere surrounding the world has been likened to the high seas, with the sole difference that the sea of air abuts upon the sovereignty beneath in a vertical instead of horizontal direction. It is true that the reasons advanced by Grotius for denying all sovereignty over the sea apply equally to the airspace. All property, says he, is grounded upon occupation, which recognizes that movables
6 Annuaire, 1906, p. 305.