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shall be seized and immovables enclosed. Put this, a result of Roman ideas of private property, has been supplanted by the modern theory that the freedom of the seas is predicated on the impossibility of effective control by any state. Therein lies the difference, for the states are not thus impotent in respect of the abutting airspace. It is true that their control may not be complete, any more than it is upon the land, but as soon as the art has been regularly established, states will be able to execute their will upon the zone abutting them from above. As one writer has said, “ the air is at all events not the sea, an aircraft no ship and a complete analogy is neither made de lege lata nor advisable de lege ferenda.”8 Of course, all are agreed that over the free seas the air is likewise free. But the airspace over a given state stands in relation to it, to adopt the phrase of Holtzendorff, as a sort of appurtenance, or to follow the terminology of Grünwald, “ a part of the underlying state."
” 10 Even Fauchille would limit the principle of freedom by a right of selfprotection (droit de conservation) in the underlying state, the scope of which is not exactly defined in his draft code.
The partisans of a second analogy compare the relation of a state to its airspace with that to its coast waters. This is certainly more in accord with the facts of the case and would result in recognizing sovereignty within a zone controllable by ordnance, subject to the rights of the craft of other states to pass inoffensively. The adoption of this analogy would affect the entire airspace available for navigation, as the new Krupp type of aëronautic cannon is said to have a ä range of fifty-five hundred, seventy-four hundred and even eleven thousand five hundred metres in a vertical direction. 11 The analogy and the rule resulting from it were strongly supported by Westlake before the Institute, but they were rejected in favor of a negative of sovereignty, saving the right of self-protection.
The reason that Westlake's proposal met with scant support was because it appeared unfavorable to the free development of aërial intercourse between nations, yet, curiously enough, the exceptions predicated upon the main rule would probably result in much greater restrictions upon traffic than the recognition of sovereignty, tempered as it would be by every normal incentive to accord free passage.
7 Mare liberum, cap. 5.
196. 11 Meurer, op. cit., p. 11.
The sweeping declaration of the Institute is out of accord with the conservative trend of international law and it was for this reason that the writer made use of still a third analogy (for the method of jurisprudence seems to require analogy where precedent fails). Before the American Political Science Association,12 the writer suggested that the right of the craft of one nation freely to traverse the airspace of another might be compared with that of the vessels of one state freely to navigate the river of a coriparian state, especially when the river becomes navigable within its own territory. It is true that this has been asserted as a right in international law.13 Indeed the United States relied upon it as such in its demand freely to navigate the waters of the Mississippi to the Gulf, prior to the purchase of Louisiana.14 The doctrine now generally accepted, however, recognizes a right of absolute exclusion,15 though its exercise would be deemed harsh and, unless required by actual necessity, unjustifiable from the point of view of neighborly conduct and comity.
It is not advisable to adopt a broad statement in the conventional regulation of a new subject, as experience alone can demonstrate the real necessities of international intercourse. The proper practice was pursued at the Berlin International Radiotelegraphic Conference of 1906 which dealt with practical problems without attempting a declaration of principles. Laudable though it may be to encourage a new medium of intercourse, the very idea of sovereignty requires an extension above, as it does beneath, the soil of a state. The attempt of Holtzendorff, Fauchille and Rolland to restrict absolute sovereignty within a zone of isolation, varying from 330 metres (thie altitude of the Eiffel Tower as the highest artificial object) to 1500 metres, would be impractical, both by reason of the topography of the earth, the effect of gravitation and the limitation of atmosphere available for human life. Furthermore, it would radically affect the very concept of national territorial sovereignty by recognizing horizontal as well as vertical boundary planes.
12 Proceedings, 1908, p. 87.
13 Bluntschli, Tölkerrecht, $ 314; Calvo, $$ 259, 290–291. Wheaton denomi. nates it an imperfect right, only to be effectuated by convention. International Law, $ 193 (8th ed.).
14 Moore, Digest of International Law, vol. 1, p. 623. Mr. Jefferson, while Secretary of State, asserted the claim upon “ the law of nature and nations." Ibid. p. 624.
16 Phillimore, International Law, vol. I, p. 225; Hall, International Law, 5th ed., p. 140; Lawrence, International Law, § 112.
Lorimer has pointed out that national sovereignties as developed in the modern world are interdependent as well as independent.16 Nowhere is this so apparent as in respect of the means of intercommunication and traffic. Self-interest alone will impel each state to grant access to and passage through its airspace in time of peace, subject only to such rules as its reasonable interests require. When the time is ripe, the enlightened policy of the family of nations may be relied upon to establish such rules of intercourse as will promote rather than impede aërial traffic. As proof it is but necessary to refer again to the convention adopted as a result of the Berlin Conference of 1906, relating to wireless telegraphy, to which the United States is also a party. By Article 3, for example, a duty is imposed on all coast and shipboard stations to reciprocally exchange wireless messages irrespective of the system employed.17 It is not unlikely that a convention will in time be worked out similarly between the nations, insuring necessary regulation in the interest of aërial intercourse. Such an agreement would properly apply to the rights and privileges of foreign craft, especially of a public character, to make use of the local areas and establishments set apart for alighting, mooring and embarkation; also to rights of way, lateral and vertical, means of identification and signals.18
As with international communication through wireless telegraphy,
16 Institutes of the Law of Nations, vol. 1, p. 364.
17 American Journal of International Law, Official Documents, vol. 3, No. 4, pp. 331, 332.
18 Meurer, op. cit., p. 21; Fauchille's Code, Annuaire, 1903, p. 19.
so with air navigation, the main problems in time of peace are administrative rather than fundamental. The endeavor to work out a limitation of sovereignty impedes, rather than promotes, the cause of free navigation in times of peace, and, as we shall see, will tend toward undesirable results in time of war. 19
(B) In Time of War. Long before the present period of progress in aërial navigation, balloons were employed in the actual conduct of warfare. Their use, however, has thus far been restricted to reconnaissance and escape from siege. During the Franco-Prussian War, the French made extensive use of them in attempts to discover the formation of the German lines. Gambetta's dramatic escape from Paris to the provinces may also be recalled. Referring to the capture of a French balloon manned by a British subject, Bismarck said that his arrest and trial by court-martial as a spy “would have been justified, because he had spied out and crossed our outposts in a manner which was beyond the control of the outposts, possibly with a view to make use of the information thus gained, to our prejudice.” 20 In fact, one condemnation is on record, though the death sentence was finally commuted.20
The attitude of the Prussians in thus impressing a character of espionage upon all belligerent aircraft has been much criticized by writers upon international law, among others, even German authorities such as Zorn.21 Hall maintains that “neither secrecy, nor disguise, nor pretence” is possible for persons traveling in aircraft.20 In the codification of the practices of land warfare, the IIagne Peace Conferences of both 1899 and 1907 adopted, in identical terms, a general negative definition of the class of persons subject to the
19 In the debate before the Institute, the French authority Weiss defended the view adopted in the text by the writer (once his humble pupil) with the following trenchant remark: La théorie de l'air libre conduirait à des notions imprécises et à des discussions sans fin. Il faut se limiter aux questions pratiques.” Annuaire, XXI, p. 304. 'Von Bar reached a similar conclusion: “Il est trop tôt pour formuler un principe sur la condition générale de l'air.” Ibid., p. 301.
20 Hall, International Law; p. 510.
charge of espionage. According to the convention finally adopted, it is declared that to the class not subject to such a charge“ belong likewise persons sent in balloons for the purpose of transmitting dispatches and, generally, for maintaining communications between different parts of an army or territory.” Accordingly, aëronauts are not exempt under every circumstance, but only when acting as emissaries. The language does not cover reconnaissance, though when aëronauts are thus occupied there is some ground for asserting exemption by reason of the general clause of Article 29 which provides :
A person can only be considered a spy when, acting clandestinely, or on false pretences, he obtains, or endeavors to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.
It is obvious that the scope of the exclusion contained in the definition is broader than the example. If it be true that neither secrecy nor pretence is possible for persons who travel in balloons, the exemption under the convention is absolute. We are not prepared to admit, however, that the use of aircraft can not be clandestine in nature, or false in pretence, merely because aircraft are normally visible over a wider area than are other means of communication. It is desirable that military aircraft receive “a fixed distinctive emblem recognizable at a distance," so as to make the whole of the convention applicable to them under Article 1, Section 2. The display of such an emblem would exempt aëronauts from the charge of espionage under all circumstances; in its absence, however, except when acting as emissaries, it is doubtful whether the convention furnishes such protection. The surrounding circumstances of each case must decide. 23
While the actual use of aircraft in warfare has thus far been restricted to the transportation of envoys and scouts, the past decade has witnessed their development for offence. It would be difficult to
22 Regulations annexed to the Convention concerning the laws and customs of was on land, Art. 29.
23 So Zorn, op. cit., pp. 185–187. He deplores the unsatisfactory condition in which this matter has been left by the Convention. Ibid., p. 179.