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had proven his capacity as a presiding officer at the First Conference, a number of the most prominent jurists of Europe and America examined the objections made. Endeavor was made, in a spirit of conciliation, to break the force of the objections by means of concessions rather than to refute them outright. Among the jurists may be mentioned: Frederic von Martens, the Nestor of conferences on international law; Asser, the most thorough expert in international private law; Sir Edward Fry, the master of the English common law; Fusinato and Hammarskjöld, the Italian and Swedish jurists who are equally prominent both from a theoretical and practical standpoint; the American jurist Choate, prominent both in diplomacy and in the courts; Mr. J. B. Scott, equally able as a professor and as a lawyer; Ruy Barbosa, the sagacious thinker and brilliant orator from Brazil; Drago, who has become celebrated through his acts as Minister of Foreign Affairs of Argentina; and above all, Louis Renault, aided by his skilful assistant Fromageot, won the admiration alike of friend and foe by his superior intelligence, experience, and forcible eloquence. As far as compatible with his instructions, the author of this article also endeavored to support all efforts looking to an agreement. At the last ballot 32 votes were given in favor of and 8 against the English-American-Portnguese proposition, which was ably and eloquently supported by the two Portuguese, Marquis Soveral and Mr. Oliveira, as well as by the Servian Milovanovitch. In this ballot those voting against the proposition were Germany, Austria-IIungary, Belgium, Bulgaria, Greece, Roumania, Switzerland and Turkey, three nations, Japan, Luxemburg, and Montenegro, refraining from voting. After the conciliatory propositions of Austria-Hungary (Merey) and Switzerland (Carlin and Max Huber) had been rejected, the conference agreed on a declaration drafted chiefly by Tornielli, viz.:
The conference has resolved to make the following declaration, in a spirit of conciliation and mutual concession, which is the spirit that has prevailed over the deliberations. This declaration, while preserving to each of the Powers represented the advantage of its vote, enables all to confirm the principles which they regard as being generally recognized. It agrees unanimously (1) in recognizing the principle of compulsory arbitration, and (2) in declaring that certain differences, and especially
those relating to the interpretation and application of international treaty stipulations, may be suitably made subject to compulsory arbitration without any restriction.
In the German White Book, page 39, a rather free translation of the declaration is given. The deviation of the translation from the original is especially significant at the beginning, where it reads each of the Powers reserves the right to maintain its own standpoint, instead of each of the powers reserves the advantage of its vote, as in the original. It is probable that this wording was chosen in order to enable the 32 nations constituting the majority in the vote at The Hague to conclude a special treaty on compulsory arbitration subsequently among themselves outside the conference.3
Although it is true that probably no war would ever have been prevented by adopting the “list,” there is likewise no doubt that its adoption“ in principle” would have been of greater value than the high sounding words of the aforecited declaration. Consequently those who are called “peace lovers" with a certain shrug of the shoulders were not the only ones who regretted its rejection.
3 Cf. Bourgeois' speech in the report of Charles Dupuy to the French Senate, 1907, No. 337, page 77, and French Yellow Book, page 116.
THE LAW OF THE AIR-SHIP
The lawyers in every country have been kept busy during the last century in developing a special body of law, first for the railroad, then for the telegraph, and then for the telephone. They must soon address themselves to a new task of the same nature. The air-ship has at last been brought to a state of efficiency which, while far short of perfection, takes it out of the field of mere experiment and seems to assure its speedy employment in the transportation for hire of passengers and goods. Other uses of less worth to the community or of absolute detriment are equally certain. It will be seized as an aid in evil-doing by smugglers, spies, burglars; by criminals of all sorts flying from justice; and for illicit trade of every kind. It flies over the borders of one sovereignty into those of another as swiftly and irresponsibly as a bird. How far must it be the subject of public regulation? How fully can the precepts of private law which have been found applicable to other conditions and relations be applied to those resulting from the introduction of this new agency of power? Can there be one world-law for the high air, as there is one world-law for the high sea ? Can such rules as those of general average and maritime lien be applied by analogy to aërial navigation?" 1
Is there, let us first ask, a right to navigate the air?
Justinian tells us that the air, like the high seas, is by natural right common to all. In the sense that all can breathe it in as they have opportunity this is certainly true; but it can hardly be accepted as a proposition of jurisprudence with respect to its use for the support of a vehicle of transportation.
It has been abundantly settled by physiologists that the pectoral muscles of a human being are too weak to move anything in the
1 See discussion of this point by Meyer, Du Domaine aérieu et de sa Réglement ation juridique.
Clunet's Journal, 1909, 2 Inst. I, 1, de rerum divisione, § 1; Dig. I, 8, de divisione rerum, $ 2, 1.
nature of wings in such fashion as to keep him afloat in the air. He must rely on the strength of some kind of mechanism, or on being buoyed up by something lighter than the atmosphere like balloons or balloonets, or on both. He is contending against the force of gravity; and the force of gravity never slumbers or tires. Every moment that he is being carried above the earth the structure that supports him is to some extent endangering the safety of all who are beneath it. Can it be said to be the natural right of any man thus to put in peril the lives and property of so many other men ?
But if not a natural right, may it not be fairly regarded as one that can be acquired from the state ?
Every independent nation must have the right to regulate the use of the air above its territory in such manner as best to promote the public interest.3 Its power extends to everything which man in the ordinary course of things can reach or appropriate on, or below, or above its soil. It is, in a sense, the ultimate owner of the soil and all upon it. It can tax it to any extent within the bounds of reason. It can reclaim any part of it for its own use on paying the owner just compensation, though it be taken against his will. In respect of the air-ship it will be dealing with a new means of making the air useful to its people. They will have an undoubted interest in having its utility promoted and its perils minimized. If it were to be granted, then, that no individual could navigate the air at will, it would not follow that the state could not give that privilege to whom it pleases, under such conditions as would further the public good. Every railroad is built and operated under a franchise from the state. Why? Because its construction and operation invade the tranquillity of individual land-owners, endanger the safety of person and property, and may obstruet public travel by other means (as at highway crossings). This franchise often grants the railroad compaly power to enter on the lands of private individuals, without seeking their consent, for the purpose of making preliminary survers, and without making any compensation unless damage be act
3 Grünwald would divide the air into a lower zone, in which there are rights of property, and a higher, where there are only splieres of influence. See Journal de Droit Priró, 1908, No. 7-9, 1058.
ually done. The public interest is deemed to justify this because otherwise the best route for the railroad could not well be known. In like manner it may justify the grant to the proprietors of an airship of the right to navigate the air under proper restrictions and for proper purposes.
Such a grant might take the shape of a bare license or of a franchise. Would not a franchise so obtained be a justification within the jurisdiction of the sovereignty from which it came, as against any adverse claim of private right? If to sail an air-ship would otherwise be either a public or a private nuisance, would not the franchise render it lawful and therefore no nuisance? 4 This would leave the owner of land under air in a position analogous to the owner of land under water. He may have an estate in fee simple, but it will be subject to a right of regulation, as to the use of the air, in the interest of the public, by public authority.
But has a land-owner such a right in the air above his property that, even were there no franchise for it, he could complain of legal injury from the use of it for an air-ship voyage ?
In Coke on Littleton 5 we are told that the owner of land owns upwards the “ Ayr, and all other things, even up to Heaven for, cujus est solum, ejus est usque ad coelum.” This maxim was not derived from the nation whose language is used for its statement and, as we have seen, is foreign to the conceptions of the Roman law as to what is the common property of all. It is the production of some black-letter lawyer, and, like every short definition of a complex right, must be taken with limitations.
It would seem that one of these must be that a proprietor of land cannot be heard to complain of any use of the air above it by which no injury to him can result. In other words, the law will hardly aid him by giving a remedy in court where there has been and could have been no actual damage. His right, if any, is too tenuous for the state to care to protect by its active intervention.
Perhaps we may go farther and say that he has no legal right at all over the air above his land, except so far as its occupation by others could be of injury to his estate.
4 Baldwin's American Railroad Law, p. 28. 3 Page 4.