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In witness whereof his Excellency the Ambassador of the French Republic to his Majesty the King of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, Emperor of India, and the Principal Secretary of State for Foreign Affairs of his Britannic Majesty, duly authorised for that purpose, have signed the present Declaration and have affixed their seals to it. — (Agreement between Great Britain and France, April 8, 1904.)
9. Dominion over the Air
REPORT OF THE COMMITTEE ON AVIATION OF THE
INTERNATIONAL LAW ASSOCIATION, 1913
Owing to the somewhat late date at which the Committee was finally constituted and the Convener nominated, it has not been possible to send out any Questionnaire, and the labours of the Committee have therefore been confined to an examination of the usage of nations and of the views, so far as possible, already pronounced of various leading jurists in reference to the law of the air space in different countries, with a view to seeing if any general principle can be arrived at for laying down the basis of an international convention or code, or if it would be more practical for purposes of an international code to consider the question from the point of view only of the usage of the air space.
Now in considering the question of an international code of the air — that is of the air space - it is certain that no satisfactory result can ensue unless a clear agreement is first come to as to the fundamental basis on which that code is to be built up.
This basis has not yet been agreed, a large number of divergent views having been put forward and ably supported by various schools of jurists in different countries.
The first point which naturally arises for consideration is: To whom does the air space over a subjacent State belong? or, as of what nature is such air space to be considered? for it is in the answer to this that a solution of the difficulty is likely to be found.
On this point, broadly speaking, there are two main schools of thought:
1. Those who maintain that the air space is of its nature free; this theory being that of the freedom of the air space.
2. Those who maintain the theory of the sovereignty of the subjacent State in the air space above its territory. The first school may again be divided into partisans of:
(a) Air freedom without restriction.
limited as regards height) of the subjacent State. (c) Air freedom restricted by a territorial zone. Those who maintain the sovereignty theory may also be subdivided into partisans of:
(a) Full sovereignty without any restriction.
passage for aerial navigation.
The various parties holding these separate views have never yet come to any agreement between themselves.
It is for this reason that Dr. Fauchille, who for the rest is an ardent partisan of the freedom theory, although he would reserve to the subjacent State the rights necessary for its preservation, has suggested that the most practical way of solving the difficulty is simply to deal with the right of "usage" of the air space without laying down any proposition as to sovereignty or otherwise in the air space.
We have every desire to facilitate an agreement as to usage, but we doubt whether any agreement can be practical which is based on an avoidance of the real point at issue. We therefore think it right to place on record the opinion we have formed on that point.
Now if the several views above mentioned put forward by the various groups of writers who are partisans of air freedom are analysed we are at once struck by the fact that nearly all of them admit that the subjacent State has certain rights necessary for its protection, and that of its inhabitants and their property, and that the argument for air freedom is a purely academic one based on the principle that the air (not the air space – hence much confusion of thought) is free and not susceptible of appropriation. And if the reasons in support of the air freedom are examined a little more closely it will be found that, though they also make an appeal on what are considered practical considerations of modern needs of international intercourse, they are largely founded on the fear that, unless freedom is asserted and conceded, States may close, or attempt to close, their atmosphere to air traffic. For reasons which are presently stated we do not apprehend that any such result will follow from the acceptance of the principle of air sovereignty.
The Comité Juridique International d'Aviation at its Paris Congress held in May, 1911, and the Institut de Droit International at its Madrid meeting in 1911 have adopted the following resolution on the subject:
"Aerial circulation is free save the right of subjacent States
to take certain measures to be determined with a view to their own security and that of the persons and prop
erty of their inhabitants.” When, however, this is examined it does not really carry the matter much further and does not appear to us to provide any practical solution of the difficulty.
If the "certain measures" which a subjacent State may take are to be determined on its own sole authority and discretion the resolution gives power which does not in fact stop short of absolute sovereignty; but if the "measures” which may be taken are only to be such as are to be agreed between States or such as may be held by some tribunal to be necessary, then confusion and conflict seem unavoidable.
The adoption of the principle of free circulation seems to us, therefore, necessarily to lead to a code which must be full of exceptions and must create endless difficulties without any corresponding advantage.
On the general question an examination of recent discussions has convinced us that the opinion of statesmen and jurists is more and more coming to accept the view of full sovereignty.
And if we turn to the more important consideration of the usage of nations we find that it is consistent only with the same view. Legislation in those countries where legislation has taken place is based on the principle of full sovereignty.
The English Aerial Navigation Acts, 1911 and 1913 assume full sovereign rights, and recent legislation in France and Russia rests on the same assumption: while the Franco-German Convention regulating air traffic, which is stated in the Press to have been recently concluded, admits the same principle in "authorising” civil aerial circulation in each country subject to certain conditions, and in allowing to each country the right of making such regulations as it pleases relative thereto.
Further, the law of private rights of most civilised countries confers property, with certain restrictions in some cases, in the air space above the land of the landowner. It is a rule of the English Common Law, which also obtains generally in the United States of America. It is embodied in the Code Napoléon, in the Codes of Germany, Switzerland, Italy, the Netherlands, Belgium, Spain, Portugal, Austria, Japan, Turkey and in the Statutes of at least one (Connecticut) of the United States of America. This shows that the principle of State sovereignty over the whole air space has been generally recognised by civilised nations, for of course the admission of the rights of private owners "usque ad coelum" involves the assertion of State sovereignty to the same extent.
It appears to the Committee impossible to contend that according to existing International Law the air space is free; nor do they think that States would be willing to accept or to act on that view of the law. But they are of opinion that subject to such safeguards as subjacent States may think it right to impose, aerial navigation should be permitted as a matter of comity.
There is no reason to anticipate that States will interfere with the passage of foreign airships through the air above their
territories in an unreasonable manner, any more than they have interfered with the passage of foreign vehicles through their territories or of foreign vessels through their territorial waters. Indeed any action of this character must necessarily be prevented by considerations of reciprocal interest.
The Committee therefore submit the following resolutions:1. It is the right of every State to enact such prohibitions,
restrictions, and regulations as it may think proper in regard to the passage of air craft through the air space
above its territories and territorial waters. 2. Subject to this right of subjacent States liberty of pas
sage of air craft ought to be accorded freely to the air
craft of every nation. Dr. E. von Hofmannsthal while agreeing generally with these resolutions, prefers to adopt the principle of full sovereignty restricted by the right of innocent passage, as he considers that the words "as it may think proper" in the first of the above resolutions might be open to abuse, and that it would therefore be preferable to limit the regulations to such as are “necessary for the protection and welfare of the subjacent State and its inhabitants."
Certain members of the Committee, notably Drs. Fauchille and Karl Strupp and Professors Henry-Coüannier and Niemeyer, have expressed themselves as unable to agree with this Report or the Resolutions. They prefer to adhere to the suggestion of "aerial circulation” on the lines of the Resolutions of the Institut de Droit International and Comité Juridique International d'Aviation above referred to. Professor HenryCoüannier considers that the fundamental basis of any International Code should be “Liberty of innocent aerial circulation subject to certain limited powers to be conceded to subjacent States," but without admitting any "rights" as of course in these latter.
Pending the decision of the Association as to the basis of the International Code to be studied, we have not proceeded further with it, and for this reason we have not touched upon Mr. Coüannier's paper upon "Epaves," but we recommend that