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The Green Bag
national Law at its Paris session. Since the International Juridic Committee has adopted a rule for its International Code that omits any mention of a territorial zone, the effort to establish such a portion of the airspace may be definitely considered as abandoned, in so far as its inauguration by inter national agreement is concerned. Mr. Fauchille still thinks that such a zone should exist, but presumably is willing to leave its establishment to the individual countries affected. If the air is to be free, the territorial zone seems to be a rational practical method to guarantee to the subjacent state its necessary rights. The con sequences of the theory are described by Mr. Fauchille in Revue juridique, pages 14-16. He finds that because the state is authorized to take the necessary meas ures to protect itself and its popula tion, that, except in case of departure or either voluntary or forced landing, it should permit aerial vehicles only above a certain height, which he sets at 500 metres, although the figure is tentative. The state, in order to protect itself against espionage, may close certain regions of the atmosphere, notably those which surround its fortified works, to aerial navigation. The state protects itself in the air space by visits in respect to its economic and sanitary interests. Public and private aircraft, in respect to acts committed on board, are subjected to the law of the flag they fly. The right of conservation granted to the states enables them to prohibit the crossing of their territory by military aircraft. These are the advantages which Mr. Fauchille cites for the system of regu lation he advocated; but it does not seem logical to the writer to argue that
they are restricted to that system. In fact, the system, like the following one, seems to the writer to be based upon a primary theory that the ground-state must give up all rights it possesses in favor of the new art of flying, except those which are absolutely essential to its existence as a political entity. The whole argument is based on the premise of what privileges shall a state enjoy in respect to aircraft rather than what rights the aircraft shall enjoy in relation to the state. Air-freedom restricted by some special rights of the ground-state without these rights being bounded upward, which is the second theory based upon freedom of the atmosphere, has won a general ap proval, and at the present writing is the winning theory. Stated as it has been by the International Juridic Committee, which found it opposed in its own mem bership by the sovereignty contention, it has been modified into what is un doubtedly a working thesis, and the only objection that can be made to the statement made of it by the Committee must, in the writer's opinion, be based upon the correctness of the underlying principle. The phrasing adopted by the Committee is a fair compromise. It reads:6 Art. 1 — Aerial circulation is free. States have in the space situated above their territory, and comprising their coastal waters, only the rights necessary to guarantee the national se curity and the exercise of private rights.
Previous editions of the text in its prototypes in the Institute of Inter national Law and the Fauchille pro jects begin with the statement: "The air is free." Freedom it will be noticed, is restricted in the Committee's text to aerial circulation, really quite a dif ferent matter. . Rcvuejuridique, Vol. I., May. 1910. 144.
