The Freedom of the Air BY DENYS P. MYERS MEMBER COMITE' JURIDIQUE INTERNATIONAL DE L' AVIATION THE advent of the air into the pur view of law was heralded by the enunciation of the doctrine of the free dom of the air-space, a theory that has much basis in reason and is particularly appealing to the imagination. The high sea is No Man's domain; let the high air follow the analogy. Aerial traffic must not be hampered by a mul tiplicity of prohibitions of varying strin gency which different ground-states shall find it desirable to put forth. These seem to be the underlying ideas which have appealed to the advocates of the freedom principle. I do not share this view, but shall try to present it without prejudice, stating the arguments as those who believe that way have done. Unrestricted freedom for the air is not advocated seriously by any one as a practical thing. Count Zeppelin has a casual remark in Die Eroberung der Luft (1908) which, standing alone, might be interpreted that way, but even he admits the necessity of regulation, which would result in a servitude upon abso lute freedom. He says1: Since fences high in the air are not imaginable, there can be no question of forbidding inter national air traffic, which must be regulated by treaties, by analogy with international maritime law.
Count Zeppelin is not a lawyer and is here speaking generally in a technical lecture. Ernest Nys, the well-known Belgian authority on international law, in the report he made to the Institute of International Law in 1902 made a statement that carries more weight 1 Page 28.
because evidently uttered with greater appreciation of the circumstances. He commented:* On earth we are to such a high degree victims of laws and regulations, let us by all means take care not to spoil the air in the same way. Law must not be the enemy of progress.
This statement was called forth by the reading of Paul Fauchille's pro jected code and, by context, was simply the expression of opposition to what he considered a disposition to legislate in detail for a thing not yet in existence. The other writers who have given ex pression to opinions in favor of unre stricted air-freedom wrote much earlier and their words are obiter dicta not meant to have application to actual flight, nor did they contemplate the actual conquest of the air. Absolute air-freedom being out of the question, advocates of the freedom principle have distinguished two sys tems of control based upon a funda mental idea of aerial freedom. Historically, air-freedom restricted only by the institution of a territorial atmospheric zone was the first of these. It was followed five years later — in 1906 — by the enunciation of the prin ciple that the air is free, but that its freedom is restricted by special rights of the ground-state not specifically bounded by height. The first plan was fathered by Paul Fauchille, who published his book, Le domains airien et le rigime juridigue des airostats in 1901 and developed the •Annuairede 1'Institut de Droit international, XIX, 108.
