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Aviation History
1913
1913 - 1254.PDF
1/jfGHT NOVEMBER 22, 1913. THE RIGHT TO FLY. By Up to now, the main conception of boundaries has been those of a lateral description, but now we have 10 regard the question from the point of view of three dimensions of space, which is to some almost as difficult mentally as the mechanical evolutions of Pegoud in the air. Every maritime ocean and every continent has its boundaries and limitations in all directions, but the aerial ocean has only one boundary, only one frontier, and that is the surface of the globe which it imprisons in its embrace. It requires, and has in fact, no lateral support beyond its own, and, as far as we know, no definite external restraining force. This description, it wilt be observed, applies not only to the air as an element, but to the air space con taining the element. We have called maritime oceans names, such as the Atlantic, Pacific, &c. Are we now going to give names to portions of the atmosphere in the same way ? No ! We should look on that element as one, the property of no nation, of no individual, but as common to all nations and individuals, subject to certain rights already acquired by and inherently essential to States and individuals. Human flight is accomplishing a peaceful revolution in the views of mankind, and in making laws for aerial navigation, and more especially to those pertaining to Customs, it is incumbent on the law makers to endeavour to establish simple and practical rules which, while safeguarding these rights acquired by the States and by the in habitants of the land, will assure the free development and untrammelled expansion of this latest aid to civilisation and universal peace. Mr. Haseitine, in his " The Law of the Air," says :—" It is universally admitted that the air space over the high seas and over unoccupied territory is absolutely free to all States and persons desiring to use it; and we may, therefore, for the present, leave this air space entirely out of account." I agree to this statement, with the following qualification : International lawyers and the powers have fixed the maritime limit at a distance of three miles from the coast, so that a State, according to this regulation, would have no sovereign right, or right of any kind, which would extend its aerial jurisdiction beyond the three mile limit. Now, the experiments of McClean, Samson, Curtiss, Ilawker, and others, have shown that hydro-aeroplanes can easily be manuuvred from warships. From their decks outside the neutral maritime belt, planes could easily be launched in the air and pass over the adjacent territory in a few minutes. Does this three mile limit aerial belt give sufficient protection for any nation suddenly attacked ? The facts speak against this, and the' Powers will have to consider the grant to nations of another limit giving them aerial rights, national easements, or whatever they may be termed, so as to ensure them sufficient protection of the nature accorded in the case of the maritime limit. So far as I am aware, this is the first time this question has been raised, and no limit has been suggested. Twenty miles would hardly give sufficient security. The position of Great Britain and trance at Dover would be difficult for diplomatists to settle if this limit were fixed upon. As far as I can gather, there are several theories as to the right to ny. I have omitted from these definitions such terms as " the / r\ty-r°f the air'" of wnich * do no1 understand the meaning. (i) That the air space is free to the use of all without restriction of any kind, and that over it no dominion, sovereign or otherwise, can be imposed. (AV.r communis omnium.) (2) That the air space is free to all, except that aerial zones are already sovereignly possessed by States over the surface of the land ruled by them. • ty ^^ a" the air space over the land and maritime belt adjacent is already within the possession of the existing sovereign Powers, subject to the right of innocent passage, and is only free over the remainder of the seas and maritime oceans and unoccupied land and deserts^ (Qui dominus est soli domiuus est coeli et infer orum.) (4) That the air space over the globe is free to the use of the aircraft of all nations, and is only subject to such rights as are required by the subjacent Powers for their respective protection against attack, espionage, infection, infringement of fiscal rights, and any further danger to the life and property of their subjects! In my view Nos. 1 and 2 are impracticable, and Nos. 3 and 4, when practical regulations are framed, lead to the same results ; but I suggest that No. 4 is the most logical theory, taking everythine into consideration. For No. 1 we must wait for the millennium In my opinion, No. 2 is rendered abortive by the adoption of the zone theory. r • Abstract of a iKtper read before the Aeronautical Society of Great Britain, Nov. 10th, 1913, at the Royal United Service Institution, Whitehall, S.W. ROGER WALLACE, K.C. M. Fauchille first fixed the vertical limit of the free horizontal zone at a vertical distance of 1,500 metres from the surface, but 1280 subsequently agreed with Capt. Ferber's 500 metre proposal. Rollin places the limit at 300 metres, and others at various other limits In attempting to give an innocent right of passage, the advocates of this system, contrary to their intention, only limit the_ facilities required. Why make the foreign aeronaut fly at all times at a prescribed height when the State can be protected by other regula tions, such as those proposed by the Federation Aeronautique Internationale, with much more security to itself and much greater control of the traffic ? No. 3 in effect affirms the sovereign power of the State, but grants to aircraft a limited right of passage through the air space, while No. 4 claims the freedom of aerial circulation, subject to the right of subjacent States to secure their conservation by certain rights. Perhaps the best way to accentuate the difference between No. 3 and No. 4 is that one gives the chief place in the definition to the liberty of aerial circulation and the other to the sovereignty of the State over the air space above its land. It is by adopting the spirit of Nos. 3 and 4 that the Commission of the Federation Aeronautique Internationale, I believe, arrived at the measures described in the draft treaty. When the International Commission met at Brussels, under the presidency of Prince Bonaparte, they had the advantage of the persons of experience in aeronautics and jurists who had attended most of the other conferences held, not only by the Aero Clubs and Associations in their various respective countries, but also the opinions of other societies which looked at the matter from the judicial point of view, such as those held by the International Law Society and the " Comite Juridique International de 1'Aviation." After a great deal of discussion on the principles and theories which should govern the aerial laws, both lawyers and practical men came to the conclusion that it would be inadvisable to discuss the question of sovereignty, because in time of war the Powers would act as they thought best in their own interest. Generally speaking, as far as I can gauge the views of the members of the Commission, their decisions were based upon a compromise derived from a blending of three principles :— (1) The principle of sovereignty of the State which has its birth in the nature of national independency and which creates the obligation of those who rule the State to take precautions and to furnish means of self-defence embracing all the necessary machinery for national and individual safety and security. (2) The principle of the so-called " Liberte de l'Air," which guarantees the independence of aerial flight, and assures impunity against the infraction of published regulations so long as it is impossible to identify the aeronaut, and so long as he has not made a descent. (3) The principle of freedom of circulation, which in our days places so many facilities at the disposal of the individual for enjoying the right to go from one country to another without being unduly inconvenienced by police and Customs regulations. All the time, however, there was an undercurrent of feeling that because of the internationality of the air it could not be the exclusive property of any State, and that no State could exercise its juris diction beyond such a point as it could establish an effective police, and that, therefore, the States were obliged to sanction this condition of affairs by making international regulations in common ; hence the necessity for providing for national and international registers, so that aircraft could be easily identified, in order to render them subject to all penalties arising from breach of regulations, whether national or international. I pass now to another International question :—The use of Explo sives and Projectiles from Balloons and Airships. The Hague Conference in 1899 passed a vote, which was accepted by all the powers, prohibiting aircraft from discharging projectiles or explosives, leaving them free to be used for intelligence and other purposes, but the term of the prohibition was limited to five years from that date and expired in 1905. This declaration was again passed at the second Hague Conference, 1907, the period of five years being changed and extended until the termination of the third Peace Conference (1914). However, a large majority of the nations failed to give their assent, among whom were Germany, France, and Italy ; it is now only binding on the contracting Powers, among whom are Great Britain and Austria-Hungary. According to the Convention the terms are only enforceable amongst the contracting Powers so that in a war between Germany and Great Britain the declaration would not be m force, and if, say, Great Britain and Austria (con tracting parties) were at war and joined by allies from among the
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