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Published online by Cambridge University Press: 04 May 2017
The invention of wireless telegraphy and recent improvements in the aeroplane and dirigible balloons have greatly extended the possibilities of international aerial communication and navigation, and have thus rendered necessary a discussion of the law of the so-called aerial domain in works on international law.
During its session at Ghent in 1906, the Institute of International Law adopted the following principles: “The air is free. In time of peace and in time of war, states have over it only the rights necessary for their self-preservation.” These principles, which were based upon the views of Fauchille and accepted by a vote of 14 against 9, have been justly criticized. They are not in agreement with recent articles and monographs on this subject, and do not answer the practical necessities either of aerial navigation or wireless telegraphy, especially in time of war.
1 Article 1 of the regulations adopted by the Institute of International Law for Aerostats and Wireless Telegraphy, 21 Annuaire, 327-29. Cf. Art. 3 of the rules adopted at Madrid in 1911 which states that “aerial circulation is free” saving the rights of the underlying states to take certain measures to ensure security. 24 Annuaire, 346. The rules adopted in 1911 have no great importance.
The following is the text of the remaining articles adopted at Ghent, in so far as they relate to the law of peace.
Art. 2. In default of special arrangements, the rules applicable to ordinary telegraphic communication are applicable to communication by wireless telegraphy.
Art. 3. Each state has the power (faculté), to the degree necessary for its security, to oppose, above its territory and its territorial waters, and to as great a height as it may And useful, the passage of Hertzian waves, whether these be emitted by apparatus belonging to the state or by private apparatus placed upon the earth, on board a vessel, or in a balloon.
Art. 4. In case of the prohibition of communication by wireless telegraphy, the government should at once notify the other governments of the prohibition it has made.
2 For the extremely interesting and suggestive views of M. Fauchille, the brilliant and versatile editor of the Revue Générale de Droit Int. Public, see Bonfils (Fauchille) Nos. 531, 1-10; Le domain aérien in 8 R. D. I. P. (1901), 414-490; Rapports a l’Institut de Droit Int. in 19 and 21 Annuaire, 19-86 and 76-87;, 17 R. D. I. P. (1910), 55 ff.; and 24 Annuaire, 23-126.
3 See especially Judge Baldwin and Arthur Kuhn in 4 this Journal (1910), 94 ff. and 109 ff.; Grünwald, Das Luftschiff, etc. (1908) ; Julliot, De la propriété du domain aérien (1909); Meurer, Luftschiffahrtsrecht (1909); Meyer, Die Erschliessung des Luftraumes in ihrem rechtlichen Folgen (1909); Schneeli, Radiotélégraphie und Völkerrecht (1908) ; Fleischmann, Orundgedank eines Luftrechts (1910) ; and Wilson in 5 Am. Pol. Sci. Rev. (1911), 171 ff.
4 See 21 Annuaire (1906), 297-99. Westlake’s article received but three votes at the time of its proposal (1906) to the Institute, but it has since won wide support. Nearly all of the above named authorities are in substantial accord with its provisions.
5 Judge Baldwin in 4 this Journal (1910), 95. He cites Inst. I, 1 de rerum divisione, § 1 ; and Dig. I, 8, de divisione rerum, § 2, 1.
6 Julliot, op. cit., p. 7, The Roman tradition of ownership in the aerial space was revived in the later Middle Ages and came down to Blackstone through Coke upon Littleton. Blackstone says : “Land hath also, in its legal signification, an indefinite extent upwards as well as downwards. Cujus est solum ejus est usque ad coelum is the maxim of the law * * * So that the word ‘ land ’ includes not only the face of the earth, but everything under it, or over it.” Cooley’s Blackstone (4th ed.), Bk. II, p. 18. Cf. Coke upon Littleton (Thomas’ ed., 1836), Bk. II. ch. 1.
7 It is expressly incorporated into the codes of Germany, France and Switzerland. For citation and discussion of cases bearing on the rights of the owner of the soil in the United States, see Judge Baldwin and Arthur Kuhn in 4 this Journal (1910), 102 ff., and 123 ff. As far as the state is concerned, the theory of ownership has of course been abandoned for that of imperium or territorial sovereignty. Grunwald appears to stand alone in clinging to the theory of dominium or ownership.
For citations from the German, French, and Swiss codes, see 4 this Journal (1910), 98 f., 127 f; Julliot, 7 f.; and Meurer, 13 ff.
8 Art. 3 of the rules of the Institute. See note, 1, supra.
9 Some publicists favor the division of the aerial space, for purposes of jurisdiction, into an upper and lower zone. Bolland (13 R. D. I. P., 58 ff.) holds the atmosphere to be territorial to a distance of 330 metres. Fauchille favors exclusive control for purposes of self-defense to a distance of 500 metres (17 R. D. I. P. 60).
A number of the older authorities favor the rule or principle of the cannon shot; but, since modern aeronautic cannon are said to have a vertical range of 5,500, 7,400, and even 11,500 metres, this would render freedom in the upper zone wholly illusory. Besides, the analogy between the marine league or range of cannon shot as applied to the ocean and aerial space soon breaks down. In the case of the ocean, the reasons for control decrease in proportion to the distance from the shore; in the case of aerial space, the danger (as, e. g., from the weight of falling bodies) may increase in proportion to the distance from the earth’s surface.
10 This would at least be the case with private airships. Public airships will probably enjoy the rights and privileges of so-called exterritoriality as in the case of public vessels or warships.
11 1 H. D. (Hague Declaration) (1907) ; Higgins, The Bague Peace Conferences, 485-91. See select bibliography on p. 488.
12 Viz : Germany, Italy, Russia and Japan. The remaining non-signatory Powers were Chili, Denmark, Spain, Guatemala, Mexico, Montenegro, Nicaragua (which has since adhered), Paraguay, Eoumania, Servia, Sweden, and Venezuela.
It should be noted that Great Britain and the United States were among the signatories. Only 13 states had ratified or adhered to this Declaration by July, 1911.
13 H. R. (1907), Art. 25.
14 5 H. C (1907), Art. 3. This article was suggested by the experiences of the Russo-Japanese War when the Russians erected a receiving station at Che-foo in China for the purpose of communicating with Port Arthur by means of wireless telegraphy. Sec Hershey, 122, 124, 266-67; Higgins, 282 f; and Lawrence, War and Neutrality in the Far East (2d ed.), 218-20.
Art. 5 of 5 H. C. also makes it obligatory upon neutrals not to permit such acts on its territory. According to 13 H. C. (1907), 5, belligerents are particularly forbidden to “erect wireless telegraphy stations, etc.,” in neutral ports or waters.
15 5 H. C, Art. 8. Article 9 adds:
“Every restrictive or prohibitive measure taken by a neutral Power in regard to the matters referred to in Articles 7 and 8 must be applied impartially by it to the belligerents.
“The neutral Power shall see to it that the same obligation is observed by companies or private owners of telegraph or telephone cables or of wireless telegraphy apparatus.”
16 According to the Declaration of London (Art. 24), “wireless telegraphy, as also balloons and flying machines and their distinctive component parts, together with accessories and articles recognizable as intended for use in connection with balloons and flying machines” may be declared conditional contraband.
Neutral airships would appear to be subject to the rights of visit and search, and liable to capture for carriage of contraband, attempt to enter a blockaded port, or unneutral service. They are liable to the appropriate penalties prescribed in such cases.
17 “Belligerents may prevent the emission of waves, even by a neutral subject, upon the high sea within the zone which corresponds to the sphere of action of their military operations.” Art. 6 of the Regulations on Wireless Telegraphy adopted by the Institute of International Law in 1906. 21 Annuaire, 328.
18 Total prohibition of or abstention from such acts would be the preferable solution, as being more in accordance with the principles underlying the modern conception of neutral obligation. The prohibition would not necessarily apply to private belligerent airships.
19 Here again the rules governing land warfare should be preferred. The practice of pillage or the taking of booty in maritime warfare is a mere historic survival with no real justification on military grounds. There seems to be no good reason for applying it to aerial warfare.
20 These statements appear necessary in view of a disposition shown in some quarters to treat them as spies upon several occasions.
During the Franco-German War of 1870, Prince Bismarck threatened to treat balloonists crossing the German lines as spies. See 1 Guelle, 136.
Early in 1904 Admiral Alexieff also threatened to treat as spies correspondents on board neutral vessels “who may communicate news to the enemy by means of improved apparatus not yet provided for by existing conventions,” in case any such “should be arrested off Kwan-tung or within the zone of operations of the Russian fleet.” This declaration, which was communicated to the Powers by the Russian Government, was provoked by the presence in the Gulf of Pe-chi-li and adjacent waters near Port Arthur of Mr. Fraser, a London Times’ war correspondent on board the Chinese dispatch boat Haimun equipped with wireless telegraphy apparatus. His dispatches were sent to a neutral station at the British port of Wei-hai-wei, whence they were transmitted to London.
On the case of the Haimun, see especially: Fraser, A Modern Campaign (1905) ; Hershey, The Int. Law and Diplomacy of the Russo-Japanese War, 115 ff. ; Lawrence, War and Neutratit]/ (2d ed.), 83 ff.; 1 Rey, La guerre-russo-japonaise, 368 ff.; and Int. Law Situations (1907), 159 ff.
The Hague Regulations (Arts. 13 and 29) include “newspaper correspondents and reporters” among the army followers entitled to treatment as prisoners of war ; and expressly exclude “individuals in balloons to deliver dispatches, etc.,” from the category of spies.
21 On the Law of Aerial Space in Time of Peace, see Baldwin, in 4 this Journal (1910), 94 ff.; Bluntschli, Art. 632 bis; Bonfils (Fauchille), Nos. 531, 1-10; Blachère, L’air voie et le droit (1911) ; Dupuis in 14 R. D. I. P. (1907), 373; Fauchille in 8 R. D. I. P. (1901), 414 ff. and 17 R. D. I. P. (1910), 55 ff.; Ibid., in 19 Annuaire (1902), 19-86; Ibid., in 21 Annuaire (1906), 76 ff.; Ibid., in 24 Annuaire (1911), 23 ff., 303 ff.; Gareis, in Münchner Neusten Nachrichten (17 Feb., 1009), Nr. 38; Fleischmann, Grundgedanken eines Luftrechts (1910) ; Hazeltine, The Law of the ‘Air (1911) ; Hüty in 19 Archiv des öffent. Revhts (1905), 87 ff.; Holtzendorff, in 2 Holtzendorff, 230; Grünwald, Das Luftschiff, etc. (1908); Ibid., in 24 Archiv Oeffent. Rechts, Heft 2 (1909), 190-201, & 477 ff.; Julliot, De la propriété du domain aérien (1909) ; Jurisch, Grundzüge des Luftrechts (1897); Kausen, Die Radiotélégraphie im Völkerrecht (1910); Kenny, in 4 Zeitschrift (1910), 472 ff.; Kohler, in 4 Zeitschrift (1910), 588 ff.; Kuhn, in 4 this JOURNAL (1910), 109 ff.; Liszt (3d ed.), § 9, p. 76; Loubeye, Les principes du droit aérien (1911) ; Lyklama, Air Sovereignty (1910) ; Meili, Das drahtlose Télégraphie (1908) ; Ibid., Das Luftschiff, etc. (1908) ; Meurer, Lufftschiffahrtsrecht ( 1909 ) ; Ibid., in 16 R. D. I. P. ( 1909 ), 76 ff. ; Meyer, Die Erschllessung des Luftraunes, etc. ( 1909 ) ; 2 Mérignhac, 398 ff. ; 1 Nys, 523-32; Ibid., in 34 R. D. I P. 501 ff.; Ibid., in 19 Annuaire, 86-114; 1 Rivier, 140 f.; Rolland, in 13 R. ü. I. P. (1906), 58 ff.; Schneeli, Radiotélégraphie und Völkerrecht (1908), §§ 7-13; Speri, in 18 R. D. I. P. (1911), 473 ff.; Schroeder, Der Lutfflug, etc. (1911) ; Ullman (2d ed.), § 86, p. 289, and § 147, pp. 426-27; Wilson and Tucker, § 57; Wilhelm, in 18 J. L D. (1891), 440 ff., 171 ff.; Wilson, Int. Law, §§ 30, 43; Ibid., in 5 Am. Pol. Sei. Rev. (1911), 171 ff. For fuller bibliographies, see Bonfils, Kausen, Meyer, Speri, etc.
On Aerial Warfare, or the Law of Aerial Space in Time of War (with special reference to balloons, aeroplanes and wireless telegraphy), see: Boiden, in 16 R. D. I. P. (1909), 261 ff.; Bonftls-Fauchille, liv. IV, Nos. 1440, 2-8; Fauchille, in 19 Annuaire, 55-77; Idem., in 21 Annuaire, 76 ff.; Hearn, Airships in Peace and War (2d ed.), 1910; Kausen, Die Radiotélégraphie, etc. (1910), 75 ff.; Kebedgy, in 36 R. D. I. P. (1904), 445 ff.; Mérignhac, Les lois de la guerre sur terre (1903), 197 ff. ; Meyer, Die Luftschiffart in Kriegsrechtlicher Bedeutung (1909); Phillipson, Two Studies in Int. Law (1908) 104 ff.; Philit, La guerre aérienne (1910) ; Rolland, in 13 R. D. I. P. (1908), 58 ff.; Schneeli, Radiotélégraphie und Völkerrecht (1908), 14-37; 1 Scott, The Bague Conferences, 649-54; Int. Law Situations (1907), 138 ff. ; Scholz, Drahtlose Télégraphie и Neutralität (1905).
For fuller bibliographies, see Bonfils, Kausen, Meyer, etc.
