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TEXTBOOK OF AERIAL LAWS
CIVIL AND MILITARY
THE RIGHT TO FLY—AND THE RIGHT OF PEOPLE BELOW, AS IT APPLIES
TO NATIONS, STATES, AND CITIES, AS WELL AS TO INDIVIDUALS
Schoen to Mr. René Viviani, French minister of foreign affairs, during his farewell audience, August 3rd, 1914, in Chapter entitled “Military Aerial Laws.”) Had aerial navigation been under control this casus belli would not have existed.
Freedom of the Air and Freedom of the
The purpose of this book, the first textbook on this subject, is to make available a complete review of the subject of Aerial Jurisprudence and give the status of aerial laws
regulations of aerial navigation, international, national and municipal, civil and military.
Aerial laws upon and regulations of aerial navigation are needed to govern aerial navigation internationally and nationally. A start has been made but it is only a modest start and the aerial code is still to be written. The international agreement for the regulation of international air navigation adopted recently by most of the Allied and Associated Powers serving on the Aeronautical Commission of the Peace Conference opens a very vast subject and every effort should be made to bring about an international agreement on every phase of this subject in the near future, to place aerial navigation under full control and avoid international complications.
It must not be forgotten that Germany stated as its official reason for declaring war against France that French aviators had committed hostile acts on German territory. (See letter handed by the German Ambassador
Freedom of the Air promises to be as difficult to define as Freedom of the Sea.
When the earliest of international jurists, Hugo Grotius, five centuries ago, propounded the doctrine that “The air, running water, the sea-are common to all,” he established a basis for discussion of international laws. His treatise De Jure Belli ac Pacis was an epoch making contribution, and his doctrine of mare liberum, freedom of the seas, is still the ideal doctrine of the international jurist who considers the subject from the standpoint of the idealist. Wars have been waged to establish and maintain this doctrine.
With the lessons of five centuries in regard to the doctrine of the freedom of the seas be
fore us, it would seem that there ought not to be much difficulty to establish the doctrine of freedom of the air. But the problems of aerial navigation are different and much more complicated than sea navigation.
The aircraft may be said to have an open road in every direction of the compass, at every hundred feet-up heavenward indefinitely. The aeroplane altitude record is close to 40,000 feet and the limit has not been reached.
siders necessary for self-preservation.” In time of war, moreover, the doctrine of the "freedom of the air” above a certain altitude would give rise to most embarrassing questions for neutral States. They would actually be exposed to the risk of having aerial battles fought over their territory without being able to claim that their neutrality had been infringed. The case of the upper air presents no true analogy to the case of the high seas outside the limits of territorial waters.
The argument was unanswerable and the proposal fell through.
Why Great Britain Objected to Freedom
of the Air
When the International Aeronautic Conference was held in Paris in 1910, it was proposed that the air should be free to all aviators, regardless of nationality, to navigate in
The representatives of the different nations thoroughly liked the idea. The representatives of Great Britain were the only ones to object. Stripped of official verbosity and reduced to simple phrases their argument was that the idea was beautiful for the millennium to come, but that so long as the millennium was not in evidence Great Britain could not agree because freedom of the air meant that in case of war between two nations the aviators might fight their duels over London, and, with the best of intentions, cause as much damage and loss of life as if England were fighting the battle.
Besides, they pointed out, to give to foreign aircraft, as a matter of acknowledged international law, the right to fly at will over the territory of the State would be to give them undesirable opportunities for espionage, and generally to limit “the elementary rights of a State to take each and every measure which it con
Applying Wilson Principle of Freedom
of the Sea to the Air The capture of the German Zeppelin 49 by four French aviators during the war, who forced the airship to descend from the height of 17,000 feet and to proceed and land at Bourbonneles-Bains, illustrated the possibility of capturing aircraft exactly as ships are captured. This opens the possibility of conflict due to capture of neutral airships, unless the nations agree to Wilson's freedom of the seas "point” which, paraphrased to cover freedom of the air, would read:
“Absolute freedom of navigation of the air, outside of territorial zones, alike in peace and in war, except as the air may be closed in whole or in part by international action for the enforcement of international covenants.”
Three Miles Limit Inadequate in the Air
This brings up the matter of territorial air zones differing from territorial waters. The marine jurisdiction of a State extends three miles beyond the coast line, and no further.
How Are We Going to Police the Airways at 40,000 Feet?
Major R. W. Schroeder starting for the altitude record of 34,000 feet, with a Le Pere biplane equipped with a motor com
pressor for flying at high altitudes.
This photograph of a fast scouting aeroplane starting from the keel of a dirigible to which it was attached, shows one way of solving the problem of policing the air. Dirigibles carrying a number of fast scouts can be stationed at different levels and the air traffic can be directed from the dirigibles by radio-telephony. In the event of failure on the part of air pilots to obey instructions, an air scout is released whose duty will be to get the aircraft's number or to force the aircraft to descend to an official landing place for examination.
Keeping the aircraft three miles out will not prevent a spy from taking photographs of coast and fortresses. At a height of 5,000 feet or more his camera would have a field of at least six miles and the aircraft is within gliding range of the coast, aeroplanes having a gliding angle of six to one.
Obviously the territorial air zones will have to extend at least 25 miles from the coast and the height will have to be proportionate. But it is just as well to know that, no matter where the boundary line may be established, it will be as difficult to prevent violations as it will be to prevent smuggling.
disappear from sight under water or in a screen of clouds—policing the sea would certainly be most difficult.
The fact that during the war all the German aerial and anti-aircraft forces could not prevent the Allied aviators from bombing German military and naval bases; and the very powerful British and French aerial and anti-aircraft forces could not prevent the enemy operations, illustrates the difficult of regulating aerial navigation.
During the war no chance was taken. Listening stations were established at intervals of a few miles and thousands of anti-aircraft guns were ready to pour their deadly fire at a given spot in the sky and form an aerial barrage intended to prevent the raiding aeroplane from passing
The anti-aircraft guns were assisted by hundreds of fighting aeroplanes which patrolled the sky day and night, ever ready to attack and destroy a raiding aeroplane. No prisoners were taken in the air and the percentage of those who survived an aerial battle was small.
Must we do this in peace time?
Violations of Prohibition Act by Air
Supposing that an aeroplane arrives at the Atlantic City Airport. The aviator greets the people around him and remarks that he had a good trip from Boston and proceeds to unload his cargo on an automobile, which is soon on its way to deliver the cargo to its destination.
As a matter of fact he came from Cuba or Montreal and his cargo is alcoholic, therefore contraband and against the Prohibition Act.
Before long it becomes known that aircraft are used to transport alcoholic beverages from Cuba, Canada, or other places, to the United States and some action must be taken to prevent it.
This means patrolling the air as well as controlling aeroplanes and aviators by Federal restriction and licensing, inspecting the cargo and giving them clearance papers as in the case with ships. Patrolling the air is easier said than done.
Supposing that a ship could dive or rise and
How Are We Going to Rule Birdmen at 30,000 Feet Altitude, Flying at 300
Miles an Hour?
Since the ending of the war great progress has been made in aerial navigation.
The altitude record was carried to over 30,000 feet and the Atlantic was flown three times in six weeks by the gallant American and British airmen. The Alps, the Andes, the Great Atlas and even the lower Himalaya mountains have been crossed!