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THE CONTROL OF AIRCRAFT

[$ 189

sovereign is not impeded by any artificial horizontal frontier fixed at an arbitrary distance above the subjacent land; and it is not fettered as a belligerent in the enactment of prohibitions deemed necessary for the safety of its domain.

Subject to such a right of the subjacent State, it is believed that liberty of passage ought to be accorded freely, as was suggested by the Committee on Aviation of the International Law Association, in 1913, to the aircraft of every nation.1

Doubtless the judgment of the territorial sovereign as to the propriety and necessity of prohibitive enactments for the protection of its own domain should be generally respected. It may be fairly admitted that in time of war these should have broadest scope. In time of peace, however, it is not unreasonable to coning the flying of civilian aircraft, it was declared that as a war measure, a license must be obtained from The Joint Army and Navy Board on Aëronautic Cognizance by or in behalf of any person contemplating flight in a balloon, aeroplane, hydroplane or other machine or device over or near any military or naval forces, camp, fort, battery, torpedo station, arsenal, munition-factory, navy yard, naval station, coaling station, telephone or wireless or signal station, or any building or office, connected with the National Defense, or any place or region within the jurisdiction or occupation of the United States which might be designated by the President as a zone of war-like operations or of war-like preparation; and the President designated, "for the present", as such a zone "the whole of the United States and its territorial waters and of the insular possessions and of the Panama Canal Zone.' See proclamation No. 1432, Official Bulletin, II, No. 249, March 5, 1918, p. 3. Concerning procedure to get licenses under this proclamation, see Official Bulletin, April 13, 1918, p. 4.

See, also, Hawaiian Act of April 19, 1917, prohibiting operation of aëroplanes, balloons and other aircraft with certain restrictions, Hawaiian Session laws, 1917, Act 107.

See Connecticut Act concerning the Registration, Numbering and Use of Airships, and the Licenses of Operators thereof, Conn. Public Acts, 1911, Chap. 86; Massachusetts Act to Regulate the Use of Aircraft, approved May 16, 1913, Mass. Acts, 1913, Chap. 663; North Carolina Act in effect Feb. 27, 1917, rendering it unlawful to make use of any aeroplane, sea-plane or other kind of air machine in shooting wild ducks, etc., Gregory's Revisal Biennial, 1880c.

See French decree of July 31, 1914, forbidding flying throughout France, Algeria, Tunis and the French colonies, except by Government machines, Journal Officiel, Aug. 1, 1914; also decree concerning aerial navigation, Nov. 21, 1911, Journal Officiel, Nov. 25, 1911, Duvergier, Lois, new series, No. 111,.1911, p. 518; British Aerial Navigation Acts, 1911, 1 & 2 Geo. V, c. 4, and 1913, 2 & 3 Geo. V, c. 22; also British Orders made by the Secretary of State under these Acts, March 1, 1913, Brit. and For. State Pap., CVI, 646. See exchange of notes between France and Germany relative to aerial navigation between the territories of those States, July 26, 1913, Brit. and For. State Pap., CVII, 778.

i Proceedings, 28th Conference, Madrid, 1913, p. 533.

The experience of the several belligerents participating in The World War is believed to have sufficed to convince each of the imperative necessity of controlling without interference the air space over its own domain.

Illustrative of the reasonable exercise by the United States of its belligerent right of control, see proclamation of President Wilson, Feb. 28, 1918, regulating the flying of civilian aircraft, appended to § 10212a, U. S. Comp. Stat., 1918 ed., embodying Title I, § 1. Chap. 30, of the Espionage Act of June 15, 1917.

tend that a State should pursue a different course, and not decline to agree to refrain from restricting passage except for the purpose of protecting itself against known or anticipated dangers, or possibly of defraying the cost of protection. Thus the demands of an interior State, surrounded by land and possessed of meager water communications with the sea, such as Bolivia or Switzerland, to passage by air over the territories of adjacent States, acquire strength from the circumstance that the society of nations is, for the sake of its entire membership, solicitous that there be freest access to, as well as egress from, the territory of each country by every practicable means.

As the development of the science of aëronautics has already established the feasibility of prolonged air flights of vast importance in facilitating international communications, the potential advantages to commercial and economic interests are likely to become increasingly influential in deterring individual States from imposing arbitrary barriers.2 The same influence may be expected, moreover, to hasten the development of a practice tending to restrict the very right of a territorial sovereign to oppose the passage of foreign aircraft save for purposes and under conditions generally agreed to be reasonable.3

(c)

§ 190. The International Flying Convention of 1919. The International Flying Convention emanating from the Peace Conference, and signed in behalf of certain Powers in October, 1919,

1 "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 the safety 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." Blewett Lee, "Sovereignty of the Air", Am. J., VII, 470, 490. See, also, same writer, in Harv. Law Rev., XXXIII, 23.

2 The transportation, for example, of specie by air-craft for great distances and at a high speed, makes possible such economy of time and cost, and thereby so facilitates the payment of foreign balances as to furnish in itself solid reason for general arrangement in aid of use of air space over foreign territory for this purpose.

The Aërial Law Committee of the International Law Association in its report of 1914, adverted to the following points requiring treatment in an international code, and which were dealt with separately and fully in the project then submitted: (1) the distinction between public and private air vehicles; (2) the nationality and registration of air vehicles; (3) distinguishing marks and documents indicative of nationality and registration of such vehicles; and (4) the right of alighting. Int. Law Assn., Hague Papers, 1914, 218.

THE INTERNATIONAL FLYING CONVENTION OF 1919 [§ 190

was a direct response to the pressing need of a general contractual arrangement.1 While it was there recognized that "every State has complete and exclusive sovereignty in the air space above its territory and territorial waters ",2 each contracting party undertook in time of peace to accord freedom of innocent passage above its territory and territorial waters (embracing those of its colonies) to the aircraft of the other contracting States, provided the conditions established in the convention were observed. It was agreed, moreover, that all regulations made by a contracting State as to the admission over its territory of the aircraft of the other contracting States should be applied without distinction of nationality.

Each contracting State retained the right, for military reasons or in the interest of public safety, to prohibit the aircraft of the other contracting parties from flying over certain areas of its territories. Nevertheless, every aircraft of a contracting State was accorded the right to cross another State without landing, following, however, the route fixed by the State over which the flight should take place. Moreover, the establishment of international airways was to be subject to the consent of the States whose territories were flown over. It was declared that in case of war, the provisions of the convention were not to affect the freedom of action of the contracting States either as belligerents or neutrals.7

6

Careful provision was made for establishing the nationality of aircraft, and with respect to certificates of airworthiness and competency, rules to be observed during the various stages of flight,10 and certain prohibited transportation." Arrangement for the

1 Senate Doc. No. 91, 66 Cong., 1 Sess.; also Convention portant réglementation de la navigation aérienne (13 Octobre 1919), Cmd. 670, London, 1920. 2 Art. II.

3 See, in this connection, Blewett Lee, "The International Flying Convention", Harv. Law Rev., XXXIII, 23; Arthur K. Kuhn, "International Aërial Navigation and the Peace Conference", Am. J., XIV, 369.

Art. II. According to Art. XVIII the passage or transit of any aircraft with or without landing over or through the territory of any contracting State, including stoppages reasonably necessary for the purpose of such transit, was not to entail any seizure or detention of the aircraft by or on behalf of such State or any person therein, on the ground that the constitution or mechanism of the aircraft was an infringement of any patent, design or model, duly granted or registered in such State. Every claim for an infringement of such a kind was to be duly made in the country of origin of the aircraft.

5 Art. III.

Art. XV. It was added, however, that for reasons of general security such an aircraft would be obliged to land if ordered to do so by means of signals provided in an Annex to the Convention.

7 Art. XXXIX.

Arts. XI-XIV.

8 Arts. V-X.
10 Arts. XIX-XXVI.

" Arts. XVII-XXX. Thus according to Art. XXVII the carriage by air

treatment of State, as distinguished from private, aircraft was agreed upon. An International Commission for Air Navigation, to be a part of the League of Nations, and to assume permanent form, was devised, and arrangement made for its organization and functions.2

$191. The Same.

It should be observed that the privileges of the convention were to be confined to the contracting States, and to those to be permitted to adhere to it, and that the right of adhesion was definitely restricted. The opinion has been expressed that these restrictions, prior to the time when all States may be adherents, are open to objection, on the ground that a right of essentially innocent passage will be denied to outside States equitably entitled to it; and fear is expressed lest the right of a territorial sovereign to fix air routes within its domain may be productive of abuse of power.1

craft of explosives and of arms and munitions of war was declared to be forbidden in international navigation. Nor was any foreign aircraft to be permitted to carry such articles between any two points in the same contracting State.

1 Arts. XXXI-XXXIV. State aircraft were said to embrace military aircraft, and aircraft exclusively employed in State service, such as posts, customs and police. Every other aircraft was deemed to be "private.' Moreover, all State aircraft other than military, customs and police aircraft, were to be treated as private aircraft, and as such to be subject to all of the provisions of the convention. Art. XXXI.

According to Art. XXXIII, neither the flight of a military aircraft of a contracting State over the territory of another, nor its landing upon such territory, was to be permitted without special authorization. In case of such authorization, such an aircraft was to enjoy, in the absence of special stipulation, the "privileges of extraterritoriality" customarily accorded to foreign vessels of war. It was declared, however, that a military aircraft which was forced to land, or was compelled or required to land, should not, by reason of that circumstance, acquire a right of extraterritoriality.

2 Art. XXXV.

3 According to Art. XLIV: "Any State which took part in the present War but which did not take part in the negotiation of this Convention may express its desire to adhere to this Convention and may be admitted to adhere to it, if such a State is a member of the League of Nations, or until January 1st, 1923, by a unanimous vote of the Signatory and adhering States or, after January 1st, 1923, by an affirmative vote comprising at least three fourths of the total possible votes of the signatory and adhering States, the votes of the different States having the same weight as that provided by Art. XXXV of this Convention for the International Commission for Air Navigation."

See, also, Art. V where it was agreed that "no contracting State shall, except by a special and temporary authorisation, permit the flight above its territory of an aircraft which does not possess the nationality of a contracting State.'

"Must the winding courses of international rivers, where such rivers exist, be followed to the sea? An air line is supposed to be straight. Can the payment of customs duties be imposed or tolls charged, in case of States which do not happen to be contracting parties to the Convention, for transit of their airships over the air space of other States? Must commercial airships flying from America to Scandinavia avoid passing over Great Britain? Will air

CONTROL OF HERTZIAN WAVES

[§ 192 It must be regretted that the convention assumed the form of a closely guarded arrangement for the exclusive benefit of States assigned to a particular group, until enlarged according to their will, rather than a plan designed to respect the equitable claims of every State in need of access by air to distant sea or land over foreign territory, and ready to submit to all reasonable and uniform restrictions to be applied to its craft. The demands of the international society deserved closer scrutiny and broader respect.

(d)

§ 192. Control of Hertzian Waves.

It is doubtless the right of a State to control the passage of Hertzian waves through the air space over its territory. The reason for the exercise of such control, even in time of peace, is the disturbance of the existing local systems of communication, whether by wire or wireless devices, which may otherwise be effected.1 Such passage does not, however, involve danger to the subjacent land through the operation of the law of gravity upon a body heavier than air. Moreover, disturbances may be prevented without necessarily thwarting the passage of 'foreign waves or of destroying their value. This circumstance strengthens the equity of the claim that in time of peace the territorial sovereign should not oppose any arbitrary barrier, and should not, therefore, decline to agree to refrain from so doing. General concern in facilitating the communication of intelligence by every available process appears already to have welded an international interest ships be denied the use of trade winds of the higher air levels? Whatever reduces by prohibition the sum of human rights everywhere is worthy of consideration. Nothing that touches the universal life of humanity is unimportant. If, as everyone hopes and believes, commercial aviation will be an important factor in the future life of nations, States excluded from the Convention have here a very serious ground for objection, and may fairly claim that they are denied the common rights of mankind. Just when a relief had at last been found by human ingenuity for the isolation of the last communities, and a way had been opened to the remotest spots of the earth, here is a treaty which undertakes to deny the relief and to close the way, except to signatory nations. Switzerland should have of common right commercial access to the sea and to States not adjacent by the air, and not be dependent for it upon the consent of other nations. The notion that the adjacent surrounding countries may forbid entirely the innocent passage of Swiss commercial aircraft cannot fairly be based upon the idea that this result is requisite for the safety of these countries, for everybody knows better. Nations not parties to the Convention ought to seek admission to it, and if it is denied, they are entitled to feel that their citizens have less rights than other men and are denied a substantial part of human freedom." Blewett Lee, “The International Flying Convention", Harv. Law Rev., XXXIII, 23, 34-35.

1 Harold D. Hazeltine, Law of the Air, 96; also Bonfils-Fauchille, 7 ed., §§ 53117-53118; R. Thurn, Die Funkentelegrafie, Berlin, 1913.

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