AIR SOVEREIGNTY

Dominion, Volume 12, Issue 161, 2 April 1919, Page 7

AIR SOVEREIGNTY

NEW BODY OF LAW

POINTS FOR JURISTS OP THE FUTURE (By a Legal Correspondent of the London "Times.") Sovereignty' of the air has never yet been juridically determined in tho same way us sovereignty of land or sovereignty of the sea. In the case of the open sea it is confined to a three mile territorial limit, or, as laid down by tho famous Prizo Court Judge, Lord Stowcll, in tho case of the Twco Oebroeders, tho range of a cannon shot, then estimated at about a niarino league. In dealing with this subject our jurists of to-day will 11,0 doubt lean largely upon established maritime and riparian custom, for, as Queen Elizabeth tartly told a complaining Spanish Ambassador some few years before tl.o Armada, "the use of the sea and air is common to all." But the doctrine of sovereign proprietorial rights over wide areas of the ocean was for centuries tenaciously maintained by many countries—e.g., by the United States in the Behring Sea dispute towards tho end of the 19tii century—and even now free use of the enclosed waterways of the world does not exist. • i Future Floating Hotels, The proprietorial instinct is still as strong in the community as in t'he tindividual. The latter, according to English law, and tho law of most countries, if he owns a piece of land has the right (if there is no restrictive covenant nor breach of ancient lights) to build on it .•»'; high as he likes. Cujus est solum ejus est usque ad i.oelum. But has he really any property in the actual air above his land?

Supposing one of the floating' hotels of the future took up its temporary abode at a height of two miles above a large estate, could the' estate owner proceed against the hotel owner for trespass or charge him rent for occupation of his (the estate owner's) share of the firmament? A certain American Corporation has passed an ordinance claiming jurisdiction up to a height tf 20 kilometres. Again, there has been set. up in the North of England a factory for the fixation of nitrogen from the air. Supposing the effect of the process impoverishes the atmosphere overhanging neighbouring properties, have trie owners of the latter any right of action against the factory owners? , Thirdly, does the wireless process have a deleterious effect upon the atmosphere near the Marconi transmitting stations, such as to infringe the proprietorial rights of landowners? This question has been answered, in advance by a clause of the Berlin Wireless Convention of 1906, whereby neither State nor landowner may prevent Herzian waves unless they interfere with his legitimate interests. Fourthly, supposing an aeroplane crashes and damages a house, who pays for the damage? Precedent is dear to the soul of the lawyer, and here is perhaps the only case where he will he nble to cite to the air tribunal of the future a precedent, e.g., Guille v. Swan (19 Johnson, 3SI), in the New York Justice's Court, in 1822. G.'s balloon came down in S.'s garden, doin? 15 dollars' worth of damage to growing crops; a crowd rushed in, doinir 75 dollars? worth of damage more. G. had to pay for all the damage.

The International Aspect. Such points of municipal law are already provided for in the Bill shortly to be submitted to Parliament, but the far wider region of international, law of the air- has also been explored by the Civil Aerial Transport Committee. As a re- • suit of their labours a convention has been drafted which is being submitted to the Allied Powers preparatory to an international conference early in 1019. • The jurisprudence of the air still remains to be established, and we may hope tu see the. English modern school of (international jurists talcing the forefront in this new field, w:ith M. Fauehille (France) and M.-'Nys (Bagiiim). Doubtless other authorities will spring up, for in the 'nineties two Italian lawyers discoursed respectively on crime in the air space and the duties of a commissioner of oaths in the air!

As regards aerial jurisdiction there are three points of view: (1) The air space is free altogether. (2) There should he a. territorial air rone analogous to the territorial water Jiiuit; above that line tin; air will bo free. , t ' (3) The air space above a Sovereign State is owned by that State. No. (1) has been universally scouted as impracticable, at anv rate till a real League of Nations is' established, but No- (2) has very strong support. Fail-' ohille recommended a territorial zono from MO to 1500 mnnv.s high, but that was before the era of powerful onti-uir-craft artillery (the Litest British A.A. enn has an effective range of 25,000 feet perpendicularly). At the Ghent Conference in 1000 Westlake pointed out: "In the air the higher'one oscends the greater is the destructive power of objects thrown upon the .earth. On the sea the further people go from the coast tho less is the risk of their causing destruction and disturbance upon the coast." Probably the false analogy of the sea. already denounced by famous inrists of the Nineteenth Century, will soon be scotched.

Recent Legislation. In fact. No. (3) has been embodied by Britain, France, and Kussia in recent legislation; was asserted during the war when Dutch troops fired at Zeppelins passing over Holland, and by Switzerland when British airmen lost their wav in a flight to I'riedrichshaven and passed over Swiss territory, and has been adopted by the Aerial Transport Committee in recommending, tho sovereignty and rightful jurisdiction of the Crown over tho air super-incumbent on all parts of II:s Majesty's dominions and tho territorial waters adjaco'it thereto. Probably the earliest reference in a War Prochuvation to aerial law is that issued on November 13, 19M-, by President. Wilson as. to the neutrality of tho Panama Canal. Articles 11 and 15 provide that wireless telegraphy by a belligerent ship in the Canal Zone should be used only pn Caual business, and that anv aircraft earned on such ships should not be allowed to lly. It is earnestly Jo be hoped that the laws of the air framed to meet any war in the future will not hs weakened by reliance upon the very feeblu corpus juris called international Law, wheh shed so inanv of its iinibs (luring the Great AVar. The reason is nut hv to seek. Wc tried to apply old laws to new phenomena to which i'liev bore no relation, and the whole edifice of International Law had now to be rebuilt on a new foundation.