Page:The Green Bag (1889–1914), Volume 24.pdf/472

 The Freedom of the Air From 1901 — when Fauchille first drew attention to specific regulation of aerial traffic — until 1906 — when jurisdiction over the airspace came up in practical form in relation to the con trol of wireless telegraphy at the ses sion of the Institute of International Law — the territorial zone idea, coupled with the air-freedom theory, was gen erally accepted. At that session, which occurred just before the diplomatic conference of Berlin which enunciated the present radiotelegraphic convention, Prof. John Westlake of Cambridge University introduced the sovereignty theory in opposition to the air-freedom one, and since that time the two have been in conflict. The indefinitely re stricted 'air-freedom theory was adopted there, and secured for its chief advo cate Prof. Friedrich Meili of Zurich, an indefatigable pamphleteer on legal subjects, who was early in the field with studies of the effect of wireless telegraphy and the opening of the aerial domain to aircraft upon current legal theory. January 16, 1910, the International Juridic Committee unanimously ap proved the outline of the Code of the Air which G. Delayen of Paris, inter national delegate, had drawn up, and the national committees began work on elaborating the code as soon as the skeleton plan was distributed. German savants produced two pro jects, both in accordance with the airfreedom theory, in part at least. The first secured the votes of seven national delegates6 and read: The space above the high sea and territories belonging to no one is free. The space situated above territory of a state, and comprising its coastal waters, is viewed as part of the terri tory of that state. — (Or, as Herr H. Erithropel of Berlin proposes: Over the space above this ' Revue juridique, March, 1910, Vol. I, 75.

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territory — and comprising its coastal waters — the state has a right of sovereignty.)

The second project polled 14 votes of delegates and, in its first edition, read: The space above the high sea and territories belonging to no one is free. The space situated above the territory of a state (and comprising its coastal waters) is viewed as a part of the territory of this state. No state, however, in time of peace, may forbid the inoffensive pas sage of foreign aerostats. Events which occur aboard a foreign aerostat in the space above the territory of another state and which do not interest it are adjudicated according to the law of the state to which the aerostat belongs.

The French Doctrinal Committee agreed upon this text:7 Art. 1. — Aerial circulation is free. Never theless the states preserve the rights necessary to their defense, that is to say, to their own security and that of the persons and goods of their inhabitants Art. 2. — The space above the open sea and uninhabited territories remains absolutely free.

The Directive Committee held meet ings on April 17 and May 1, 1910, to adopt a final text.8 At the second ses sion a text proposed by the English delegate was introduced, reading as follows:9 Art. 1. — The airspace, including coastal waters, situated above the territory capable of use by the inhabitants, is free with this re striction that the states shall always have, in the space above their territory, the rights neces sary to their national conservation and to the protection of their inhabitants. Art. 2. — The space above the open sea be longing to no one remains forever free.

In the session of May 1 the reports of the balloting were read, and the re sult was in favor of the French text. The delegates of France, Belgium, Italy, Monaco, (by a vote of 5 to 2), Turkey ''Ibid., 76. ' Revue juridique. May. 1910. 133-144. •Ibid., 138.